High Court Kerala High Court

Dinesan vs The State Of Kerala on 15 December, 2006

Kerala High Court
Dinesan vs The State Of Kerala on 15 December, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1853 of 2005()


1. DINESAN, S/O.KARI,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.P.CHANDRASEKHAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :15/12/2006

 O R D E R
                                K. THANKAPPAN,  J

                               --------------------------------------

                             Crl.A.No.1853  OF 2005

                               ---------------------------

                    Dated this the 15th  day of  December,   2006.


                                JUDGMENT

The appellant, the 1st accused, in S.C.No.108/2005 on the

file of the Assistant Sessions Court, Tirur, faced trial along with

the 2nd accused, the mother of the appellant, for the of

offences punishable under Section 498 A read with Section 34 of

the I.P.C and Section 306 of the I.P.C. The prosecution

allegation against the appellant and his mother, the 2nd accused,

is that the appellant and the 2nd accused used to ill-treat the wife

of the appellant, deceased Sadina, and due to the willful conduct

of the appellant and the 2nd accused, the said Sadina has

committed suicide on 23.8.2004 and thereby committed the

above offences. To prove the case against the appellant and the

2nd accused, the prosecution examined Pws 1 to 14 and relied

on Exts. P1 to P10. Mos 1 and 2 were also produced. On

closing the prosecution evidence, the appellant and the 2nd

accused were questioned under Section 313 of the Code of

Criminal Procedure. The appellant denied the prosecution

allegation levelled against him. Relying on the evidence

adduced by the prosecution, both oral and documentary, the trial

CRL.A.NO.1853/2005 2

court found the appellant guilty under Section 498 A and he was

convicted thereunder and sentenced to undergo R.I for three

years and to pay a fine of Rs.5,000/=, in default of payment of

fine, further term of simple imprisonment for a period of six

months more. The appellant was acquitted of the charge under

Section 306 of I.P.C and the 2nd accused was acquitted of all

the charges levelled against her. The conviction and sentence

ordered against the appellant are now assailed in this appeal.

2. This Court heard both the learned counsel appearing for

the appellant and the Public Prosecutor. The learned counsel

appearing for the appellant Sri. P. Chandrasekharan, has

argued three points before this Court. Firstly the learned

counsel submits that the trial court committed serious error in

believing the prosecution witnesses to find the appellant guilty

of the charges. Secondly, the learned counsel submits that the

trial court ought not have believed the evidence of prosecution

witnesses, who are the close relatives of deceased Sadina, and

thirdly, the counsel for the appellant submits that even if the

entire evidence of the prosecution witnesses is accepted, it is

not reasonable to hold that the appellant had committed an

CRL.A.NO.1853/2005 3

offence under Section 498 A of the I.P.C. The counsel also

submits that the sentence now awarded against the appellant is

excessive.

3. To prove the prosecution case against the appellant and

the other accused, the prosecution relied on the evidence of

Pws1, 3 & 5 and also the evidence of the investigating officers.

PW1, brother of the deceased Sadina, had given the evidence

before the court that marriage of his sister Sadina with the

appellant was conducted on 7.5.2003 as per the custom

prevalent among the community. Further PW1 had stated that

after the marriage of his sister, Sadina, she was residing in the

matrimonial house and she became pregnant and thereafter she

was brought to the house of his uncle for delivery. Further, this

witness has stated that since her parents are residing in

Gundallur, himself and his sister Sadina, were residing in the

house of his uncle, PW2, at Koppam. Further PW1 had given

evidence before the court that after the delivery of Sadina, she

was gone back to the house of the appellant at Annara and after

she left the house of his uncle, he had received a phone

message on the day of the incident informing that his sister was

CRL.A.NO.1853/2005 4

admitted in a hospital at Tirur, and he went to the hospital and

it is revealed that his sister Sadina is already dead and

thereafter he had went to Tirur Police Station and given

Ext.P1 F.I Statement to the Dy.S.P. According to this witness,

at the time of the marriage of his sister, Sadina, gold ornaments

worth about 10 soverings and an amount of Rs.15,000/= were

given to the appellant as dowry and when his sister was

brought for delivery, it is seen that, no ornaments were on the

body of her sister. PW1 has further stated that his sister had

already told that all the ornaments were taken by the appellant

and he had sold it for his own purpose. When she came to the

house of his uncle for delivery, she had having only her tally

chain and during the period at which his sister Sadina was at

the house of his uncle, the appellant came to that house and

asked for her tally chain also, but that was not given by his

sister. At that time his sister told him that she was being

tortured by the appellant and his mother, the 2nd accused.

Further, he had stated that his sister told him that she being ill

treated from six to eight months of the marriage itself and she

used to complain about the ill-treatment being made by the

appellant and his mother to him. This witness has further stated

CRL.A.NO.1853/2005 5

that the appellant used to quarrel with his sister, Sadina,

frequently doubting of her chastity and also the reason that

people from outside used to come to the house to watch T.V as

that was disliked by the appellant. The evidence of this

witness is corroborated with the evidence of PW2, who is the

uncle of deceased Sadina. He had given evidence before the

court that both Sadina and PW1 were residing in his house at

Koppam. PW2 also had stated about the marriage of deceased

Sadina with the appellant and further he had stated that Sadina

had told him that the appellant was regularly quarrelling with

her and the appellant was also ill-treating deceased Sadina on

the reason that people from outside used to come to the house

to watch T.V and he was protesting such visit by others. This

witness also speaks about the ornaments which had given to

Sadina at the time of marriage and the same were sold by the

appellant. PW2 has further stated that even after the delivery,

Sadina was reluctant to go with the appellant as she had

complained of regular ill treatment being made by the

appellant and his mother. Further he had stated that Sadina

committed suicide only due to the ill treatment of the appellant

and his mother. This witness also had stated about the phone

CRL.A.NO.1853/2005 6

message received by PW1 on the date of the incident regarding

admission of Sadina in the hospital. PW3 is one among the other

relatives of deceased Sadina who was also residing at Koppam.

This witness is none other than the sister of the mother of the

deceased Sadina and she had given evidence before the court

that Sadina told her several times that the appellant ill treated

her on the reason of people coming from outside to watch T.V

and further this witness had stated that Sadina had told her

several times that the appellant used to quarrel with her some

more other reasons. Further the evidence of this witness also

corroborated with the evidence of Pws 1 and 2 with regard to

the delivery and the incident happened when the appellant

came to the house of PW2 asking for the tally chain of

deceased Sadina. PW5 is another witness, who was the class

mate and friend of deceased Sadina and this witness was

examined to prove that whenever Sadina used to come to the

house of PW2, Sadina met her and Sadina had told her that her

husband, the appellant, used to harass her and ill treat her

doubting the chastity of Sadina. This witness has further

stated that Sadina had told her that the appellant used to

quarrel with her regularly and because of that, she was not

CRL.A.NO.1853/2005 7

willing to go back to the house of appellant after the delivery.

Though these witnesses were cross examined by the learned

counsel appearing for the appellant, their evidences with

regard to the ill treatments being carried on by the appellant

have not been shattered or their evidences have not been

discredited. Hence the trial court fully believed these witnesses

and found that there is evidence to show that the appellant wed

to ill treat deceased Sadina and because of his continuous

willful conduct and harassment, deceased, Sadina was drived to

commit suicide. In this contest it has to be seen that though

defence attempted to prove that after the delivery of Sadina she

was disappointed and depressed so as to commit suicide, no

evidence has been adduced but, only a general suggestion put to

PW12 the Doctor who conducted postmortem on the body of

deceased Sadina. But that by itself is not a reason to doubt the

prosecution case proved through the evidence of witness.

Hence, this Court is of the view that the trial court is fully

justified in believing the evidence of prosecution witnesses and

to find that the appellant had committed the offence under

Section 498 A of I.P.C. The contention of the learned counsel

that there is no specific evidence before the court to show that

CRL.A.NO.1853/2005 8

the appellant had committed series of acts which drived

Sadina to commit suicide as contemplated under Section 498 A

of I.P.C. To substantiate this arguments, the learned counsel

placed before this Court a judgment of the Apex Court reported

in Girdhar Shankar Tawade v State of Maharashtra (AIR

2002 SC 2078). This Court had gone through the above

judgment of the Apex Court and it is seen that the Apex Court

had considered the factual situation in which the accused was

charge sheeted by the police under Section 498 A and Section

306 I.P.C. There were instances of similar ill treatment on the

part of the husband and in such a situation, the Apex Court held

that to prove an offence under Section 498 A, series of actions

involving ill treatment or willful conduct should be proved.

Comparing with the evidence of the case in hand with the case

dwelt by the Apex Court, this Court is of the view that the

evidence of Pws 1 to 5 would show that there were series of

instances of ill treatment on the part of the appellant and only

because of this ill treatment and willful conducts and the

attitude of the appellant, deceased Sadina was fed up and she

was tried to put an end of her life. If so, the failure on the part

of the prosecution witness to prove specific instances of ill

CRL.A.NO.1853/2005 9

treatment and non complaining about such instances are not

fatal to the prosecution case at all. It was come out in evidence

that during the marriage an amount of Rs.15,000/= and

ornaments worth for ten soverings were given to deceased

Sadina. The evidence of Pws 1 to 3 would show that when

Sadina was brought to the house of PW2 for delivery she was

wearing only her tally chain. Further, it is revealed that even

during that time, the appellant came to the house of PW2 asking

Sadina to give the tally chain for his own use and there

occurred a quarrel between the deceased Sadina and the

appellant. If so, the findings of the trial court with regard to the

continuous ill treatments on deceases Sadina by the appellant is

on evidence.

4. Hence, this Court is of the view that the findings of the trial

court with regard to the commission of the offence by the

appellant do not require any interference. Further it is to be

noted that the evidence of other witnesses who are the

neighbours of both deceased Sadina and the appellant would

show that there were frequent quarrel between the appellant

and deceased Sadina. In this contest evidences of Pws 6 and 7

CRL.A.NO.1853/2005 10

are also relevant though PW7 is not fully supporting the

prosecution case. When PW6 cross examined by the

prosecution, he had stated before the investigating officer that

he used to hear the quarrel between the appellant and deceased

Sadina and this was usual from the house of the appellant.

PW7 though declared hostile to the prosecution had admitted

that the appellant was ill treating the deceased Sadina on the

ground that people from outside used to come to the house to

watch T.V programmes. This witness though had not supported

the statement given to the investigating officer, his evidence

would also show that the married life of deceased Sadina with

the appellant was not cordial or peaceful. From the evidence

now adduced, this Court is not in a position to hold that the

evidence given by Pws 1 to 3 and 5 cannot taken as an

ordinary wear and tear of a family life which would not drive

the deceased to commit suicide. But the evidence is otherwise.

5. With regard to the sentence awarded against the

appellant it has to be seen that the trial court had considered

this question and found that the appellant is aged below 30

and deceased Sadina committed suicide within one and half

CRL.A.NO.1853/2005 11

years of her marriage and a child was also born in their

wedlock. Now it is revealed that the child is with the

relatives of deceased Sadina. It is revealed that the appellant

had given back few of the ornaments after the death of

Sadina,. Further it has to be seen that the social background

of both Sadina and the appellant has also to be considered

while imposing penalty on the appellant.

6. Taking into consideration all these aspects, this Court

is of the view that simple imprisonment for two years and

fine of Rs.2,000/= and in default of payment of fine further

simple imprisonment of three months will meet the ends of

justice. Accordingly, confirming the conviction entered

against the appellant under Section 498 A, the sentence

awarded against him is reduced to two years simple

imprisonment and fine of Rs.2,000/= with default sentence

of payment of fine, three months simple imprisonment more.

With the above modification of the sentence, in all other

respects the appeal stands dismissed. It is also revealed

that the appellant is committed to prison and undergoing

imprisonment from 24.8.2004 and is not released on bail.

CRL.A.NO.1853/2005 12

The appellant is now completed imprisonment for more than

two years and four months.

Accordingly, it is ordered that the entire period of

imprisonment is limited to the period already undergone by

the appellant. Consequently, the appellant/accused in

S.C.No.108/2005 on the file of the Assistant Sessions Judge,

Tirur, shall be released forthwith, if he is not required to be

kept in jail in connection with any other case.

K. THANKAPPAN, JUDGE.

cl

CRL.A.NO.1853/2005 13