{"id":178817,"date":"2009-03-12T00:00:00","date_gmt":"2009-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ani-vs-state-on-12-march-2009"},"modified":"2018-05-01T05:18:59","modified_gmt":"2018-04-30T23:48:59","slug":"ani-vs-state-on-12-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ani-vs-state-on-12-march-2009","title":{"rendered":"Ani vs State on 12 March, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ani vs State on 12 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 348 of 2001(B)\n\n\n\n1. ANI\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE\n                       ...       Respondent\n\n                For Petitioner  :SRI.PIRAPPANCODE V.SREEDHARAN NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.GIRI\n\n Dated :12\/03\/2009\n\n O R D E R\n                        V.GIRI, J.\n               -------------------------\n                   Crl.A.No.348 of 2001\n               -------------------------\n           Dated this the 12th day of March, 2009.\n\n\n                        JUDGMENT\n<\/pre>\n
          The first accused in S.C.No.314\/96 on the files of<\/p>\n
the 2nd Additional Sessions Court, Thiruvananthapuram, is the<\/p>\n
appellant herein.\n<\/p>\n
          2. The first accused was prosecuted for the offences<\/p>\n
punishable under Sections 304(B) and 498(A) read with Section<\/p>\n
34 of the Indian Penal Code {for short “the Code”}.    The 2nd<\/p>\n
accused, the mother of the first accused, who was prosecuted<\/p>\n
along with the first accused, was found not guilty and was<\/p>\n
acquitted. Her acquittal has become final.<\/p>\n
          3.  The first accused\/appellant was convicted for<\/p>\n
the offence under Section 304(B) as also under Section 498(A)<\/p>\n
of the Code.       He was sentenced to undergo rigorous<\/p>\n
imprisonment for a period of 7 years for the offence under<\/p>\n
Section 304(B); but no separate sentence was awarded under<\/p>\n
Section 498(A), though he was convicted for the said offence<\/p>\n
also.\n<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 2 ::\n<\/p>\n<\/p>\n
           4. The case of the prosecution, in brief, is that on<\/p>\n
3.9.1992, the first accused married Pushpam, the sister of<\/p>\n
PW.1 at the Keezharoor St. Peter’s Church. For the marriage,<\/p>\n
4 sovereigns of gold ornaments and Rs.10,000\/- were agreed to<\/p>\n
be given.      Gold was given.    Cash could not be paid and<\/p>\n
therefore, 15 cents of property was conveyed under Ext.P2<\/p>\n
document in the joint names of Pushpam and the 1st accused.<\/p>\n
Pushpam was constantly harassed by the 1st accused for money.<\/p>\n
While so, on 5.9.1994 Pushpam committed suicide by jumping<\/p>\n
into the well situated in the family house of accused 1 and 2.<\/p>\n
Therefore, it was alleged that the accused have committed<\/p>\n
offences under Sections 304(B) and 498(A) read with Section 34<\/p>\n
of the Code.\n<\/p>\n
           5. First information statement was given by CW.1,<\/p>\n
at about 9 AM on 6.9.1994 (CW.1 could not be examined<\/p>\n
because he passed away before trial). PW.1 is the mother of<\/p>\n
the deceased.      PW.2 is the sister-in-law of the deceased.<\/p>\n
PW.3 is an attester to Ext.P3 mahazar. PW.4 is a Priest who<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 3 ::\n<\/p>\n
\nsolemnised the marriage of Pushpam and the 1st accused.<\/p>\n
PW.5 is a neighbour of Pushpam and the 1st accused. PW.6 is<\/p>\n
an attester to Ext.P6 inquest report. PW.7 is the Fire Station<\/p>\n
Officer, who had played a vital role in the retrieval of the body<\/p>\n
of Pushpam from the well. PW.8 is another neighbour of the<\/p>\n
1st accused and PW.9 is the doctor who issued Ext.P8 post<\/p>\n
mortem certificate. PW.10 is the Tahsildar and PW.11 is the<\/p>\n
Village Officer, who were examined to prove the inquest and<\/p>\n
PW.12 had recorded the first information statement. PW.13 is<\/p>\n
the Investigating Officer.\n<\/p>\n
           6.   PW.1 deposed that there was a demand for 4<\/p>\n
sovereigns of gold and Rs.10,000\/- at the time of engagement<\/p>\n
between Pushpam and 1st accused. The marriage was<\/p>\n
solemnised on 3.9.1992. A child was born and the child was 9<\/p>\n
months’ old when Pushpam died.           Though Pushpam was<\/p>\n
generally seen happy, it was noticed that Pushpam was<\/p>\n
conveying the demand of Rs.10,000\/- whenever she came<\/p>\n
home and she was then found gloomy. She was brought to her<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 4 ::\n<\/p>\n
\nmother’s house viz., PW.1’s house, by the first accused about<\/p>\n
two months prior to her death. She was asked to stay there<\/p>\n
for four days. Pushpam told PW.1 that there was a constant<\/p>\n
demand for dowry. She cried when she narrated the same.<\/p>\n
There was no sufficient clarity whether there was any<\/p>\n
mediation at that point of time. It has come out that Pushpam<\/p>\n
was brought back by the 1st accused to his house about 4\/5<\/p>\n
days later. She did not say that she came across any other ill-<\/p>\n
treatment being meted out to Pushpam by the 1st accused.<\/p>\n
           7.   PW.2, the sister-in-law, also spoke about the<\/p>\n
demand for Rs.10,000\/-, stated to have been made on<\/p>\n
Pushpam, by her husband. Both Pws.1 and 2 speak about the<\/p>\n
demand for Rs.10,000\/-, which originated at the time of<\/p>\n
marriage and which can, therefore, be treated as a demand for<\/p>\n
dowry. Both of them speak about the conveyance of 15 cents<\/p>\n
of property, which at the time of deposition, could be valued<\/p>\n
at Rs.3000\/- to Rs.5000\/- per cent, having been conveyed in<\/p>\n
the joint names of Pushpam and 1st accused.       One of the<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 5 ::\n<\/p>\n
\ncontentions that was taken up on behalf of the accused is that<\/p>\n
the alleged demand of Rs.10,000\/- does not seem to be<\/p>\n
believable because, according to Pws.1 and 2, the total<\/p>\n
demand was for 4 sovereigns of gold and Rs.10,000\/- in cash<\/p>\n
and if a property having more value than Rs.10,000\/- had been<\/p>\n
conveyed, then there would not have been a demand for a<\/p>\n
lesser sum of Rs.10,000\/-, which if paid would have resulted in<\/p>\n
the property being re-conveyed to PW.1. But Pws.1 and 2 have<\/p>\n
been consistent in their version about Pushpam coming to her<\/p>\n
house two months prior to her death and narrating the demand<\/p>\n
for Rs.10,000\/-. Both of them said that 4\/5 days thereafter 1st<\/p>\n
accused came to their house and took her back.<\/p>\n
           8. There is also the evidence of PW.5, a neighbour<\/p>\n
and a retired Headmaster and a senior citizen aged 74. No<\/p>\n
motives have been attributed or suggested against him. He<\/p>\n
also deposed that though Pushpam was otherwise found to be<\/p>\n
happy, he had also sometimes found her to be sad and he<\/p>\n
stated about the demand for dowry being made by the 1st<\/p>\n
Crl.A.No.348 of 2001
\n                              :: 6 ::\n<\/p>\n
\naccused.   This version was corroborated by Pws.1 and 2. It is<\/p>\n
also stated that the first information statement was given by<\/p>\n
CW.1, the brother of the deceased on the following day.<\/p>\n
Neither the accused nor any one in the family had given the<\/p>\n
first information statement.     PW.7 is another neighbour of<\/p>\n
Pushpam and 1st accused. Though he was declared hostile, he<\/p>\n
stated that he had heard a sound on 5.9.1994 and having<\/p>\n
rushed to the spot, he found accused 1 and 2 in tears crying<\/p>\n
aloud that Pushpam had just jumped into the well. The case<\/p>\n
of Pushpam committing suicide was found established by the<\/p>\n
court below. On a re-appreciation of the evidence, I am in<\/p>\n
complete agreement as regards the manner of death of<\/p>\n
Pushpam.\n<\/p>\n
           9. I am also in agreement with the findings of the<\/p>\n
court below that the accused had made demand for dowry with<\/p>\n
Pushpam and that Pushpam had been taken to her mother’s<\/p>\n
house and left there for about 4\/5 days. But, I also take note<\/p>\n
of the fact that even going by the evidence of Pws.1 and 2,<\/p>\n
Crl.A.No.348 of 2001
\n                              :: 7 ::\n<\/p>\n
\nPushpam had not shown any reluctance in joining her husband<\/p>\n
when he came to her house. PW.1 has said that generally she<\/p>\n
found her daughter happy with her husband. But, there was a<\/p>\n
demand for dowry and the said demand as such is spoken to by<\/p>\n
Pws.1 and 2 and corroborated by PW.5.\n<\/p>\n
           10. There is yet another aspect, which has to be<\/p>\n
taken note of. PW.8 the doctor has deposed that out of the 13<\/p>\n
injuries, which were found on the body of the deceased,<\/p>\n
injuries 7, 8, 9 and 10 contusions, which were found to be blue<\/p>\n
in colour, could have happened on account of a contact with<\/p>\n
the blunt instrument prior to the fall into the well and the<\/p>\n
consequent drowning, which led to the death of the deceased.<\/p>\n
The said wounds, which were blue in colour, were on the left<\/p>\n
shoulder, wrist, and left palm.       There was no reasonable<\/p>\n
explanation offered by the accused as to how those injuries<\/p>\n
could have been detected on the body of the deceased. It is<\/p>\n
not possible to conclude that those injuries were caused due to<\/p>\n
the fall, which had immediately preceded the drowning.<\/p>\n
Crl.A.No.348 of 2001
\n                            :: 8 ::\n<\/p>\n
\nThose wounds could have been inflicted well prior to the fall,<\/p>\n
which had led to the death of the deceased. No doubt, there<\/p>\n
is no clinching circumstance to show that Pushpam had been<\/p>\n
subjected to physical harassment and Pws.1 and 2 also do not<\/p>\n
depose that Pushpam had told that she was being beaten by<\/p>\n
her husband.      There is a vague statement by PW.2 that<\/p>\n
Pushpam had told her that a demand for dowry is sometimes<\/p>\n
accompanied by beating as well. This answer is given at the<\/p>\n
time of cross-examination.     But the time when this was<\/p>\n
conveyed to her by Pushpam and whether this was pursued as<\/p>\n
such is not spoken to by PW.2. PW.1, the mother does not say<\/p>\n
anything about Pushpam having been subjected to any such<\/p>\n
physical harassment or any such version being conveyed by<\/p>\n
Pushpam. On an over all re-appreciation of the evidence, I am<\/p>\n
of the view that Pushpam was subjected to repeated demands<\/p>\n
of dowry and she was being harassed in that line. That the<\/p>\n
demands were being made by the husband-1st accused is also<\/p>\n
clear from the evidence of Pws.1 and 2, corroborated by PW.5.<\/p>\n
Crl.A.No.348 of 2001
\n                               :: 9 ::\n<\/p>\n
\nSince the 2nd accused has been acquitted and her acquittal has<\/p>\n
become final, I refrain from making any comment as to<\/p>\n
whether the 2nd accused was responsible for such demand. The<\/p>\n
demand for dowry, therefore, being made on Pushpam would<\/p>\n
definitely amount to harassment.\n<\/p>\n
           11. The crucial question is whether the demand for<\/p>\n
dowry so made on Pushpam, was the proximate cause which<\/p>\n
led to Pushpam having jumped into the well on the fateful day<\/p>\n
of 5.9.1994. The court below had referred to the injuries 7 to<\/p>\n
10 in Ext.P8 postmortem certificate to come to the conclusion<\/p>\n
that physical harassment which could have been meted out to<\/p>\n
Pushpam would have persuaded her to take the ultimate<\/p>\n
decision to jump into the well.           I am afraid that the<\/p>\n
ingredients to make out an offence under Section 304(B) IPC<\/p>\n
Pushpam has not been analyzed or appreciated by the court<\/p>\n
below correctly. Section 304(B) reads as follows:<\/p>\n
             “Dowry death: (1) Where the death of a woman is<\/p>\n
      caused by any burns or bodily injury or occurs otherwise<\/p>\n
      than under normal circumstances within seven years of<\/p>\n
      her marriage and it is shown that soon before her death<\/p>\n
Crl.A.No.348 of 2001
\n                              :: 10 ::\n<\/p><\/blockquote>\n
\n      she was subjected to cruelty or harassment by her<\/p>\n
      husband or any relative of her husband for, or in<\/p>\n
      connection with, any demand for dowry, such death shall<\/p>\n
      be called ‘dowry death’ and such husband or relative<\/p>\n
      shall be deemed to have caused her death.<\/p><\/blockquote>\n
            12.    That the death of Pushpam occurred on<\/p>\n
account of the bodily injuries sustained by her, as noted in<\/p>\n
Ext.P8 postmortem certificate, is a matter which has been<\/p>\n
established beyond doubt. That the death took place within 7<\/p>\n
years of marriage is also established. But the crucial link to<\/p>\n
make an offence under Section 304(B) of the Code is that<\/p>\n
Pushpam must have been subjected to cruelty or harassment<\/p>\n
by the 1st accused, soon before her death and that such cruelty<\/p>\n
or harassment was in connection with any payment of dowry.<\/p>\n
In such circumstances, the death shall be called a “dowry<\/p>\n
death”. Is there any evidence, as such, to demonstrate that<\/p>\n
Pushpam was subjected to physical harassment or cruelty<\/p>\n
immediately before her death and the same was in relation to<\/p>\n
the demand of dowry. There is total dearth of evidence in this<\/p>\n
regard. It is PW.1, who has spoken to the fact that she had<\/p>\n
Crl.A.No.348 of 2001
\n                            :: 11 ::\n<\/p>\n
\ngone to Pushpam’s house about 13 days prior to her death. But<\/p>\n
PW.2 also does not say that Pushpam had said that she was<\/p>\n
subjected to any physical harassment or that she was being<\/p>\n
beaten by her husband or by any other inmate of his house in<\/p>\n
connection with the demand for dowry. PW.2’s testimony has<\/p>\n
been accepted by the court below and at any rate, the<\/p>\n
testimony is believable as such. But PW.2 has not spoken that<\/p>\n
she had found any marks or injury on Pushpam when she had<\/p>\n
come 13 days prior to her death and that Pushpam had stated<\/p>\n
that her husband had been regularly beating her with a<\/p>\n
demand for dowry. There is no other evidence on record to<\/p>\n
show that there had been any fight between them and such<\/p>\n
fight between the husband and wife was in relation to the non-<\/p>\n
receipt of dowry. In fact, there is total dearth of evidence on<\/p>\n
this aspect. If that be so, the crucial ingredients of Section<\/p>\n
304(B) of the Code is absent in this case. Pushpam has not,<\/p>\n
before her death, stated that she was subjected to cruelty or<\/p>\n
harassment in connection with the demand of dowry and such<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 12 ::\n<\/p>\n
\nan incident has not been established.      In fact, let alone<\/p>\n
establishing the same beyond reasonable doubt, there does not<\/p>\n
seem to be any evidence, attracting the crucial ingredients of<\/p>\n
Section 304(B) of the Code. In the circumstances, I am of the<\/p>\n
view that the conviction of the 1st accused under Section 304<\/p>\n
(B) of the Code is unsustainable.\n<\/p>\n
           13. But I am in agreement with the court below<\/p>\n
that the 1st accused has committed the offence under Section<\/p>\n
498(A) of the Code. The constant demand for dowry with the<\/p>\n
wife and denying his company to the wife for the purpose of<\/p>\n
dowry are matters, which will constitute physical harassment<\/p>\n
within the meaning of Section 498(A) of the Code. Learned<\/p>\n
counsel for the appellant submits that there is no acceptable<\/p>\n
evidence to show that Pushpam was being subjected to any<\/p>\n
physical harassment. The offence under Section 498(A) of the<\/p>\n
Code is not dependent on any physical harassment. Cruelty for<\/p>\n
the purpose of Section 498(A) would include any willful<\/p>\n
conduct, which is likely to drive the woman to commit suicide.<\/p>\n
Crl.A.No.348 of 2001
\n                             :: 13 ::\n<\/p>\n
\nPushpam was only 22 years at the time of her death. She had<\/p>\n
a 9 month old child. There was no other cause for her, which<\/p>\n
would have impelled her to commit suicide. She was aggrieved<\/p>\n
by the demand for dowry as spoken to by witnesses. In these<\/p>\n
circumstances, I am of the view that the prosecution has<\/p>\n
established that the 1st accused is guilty of the offence under<\/p>\n
Section 498(A) of the Code.\n<\/p>\n
            14. In the circumstances, the 1st accused\/appellant<\/p>\n
is liable to be convicted for the offence under Section 498(A)<\/p>\n
of the Code.\n<\/p>\n
            15.   I heard learned counsel for the appellant\/1st<\/p>\n
accused    and learned Public Prosecutor on the question of<\/p>\n
sentence as well.\n<\/p>\n
            16. The court below had not awarded any separate<\/p>\n
sentence for the offence under Section 498(A) of the Code.<\/p>\n
In circumstances where the court below had sentenced the<\/p>\n
appellant to undergo rigorous imprisonment for a period of 7<\/p>\n
years under Section 304(B), the court below has not awarded a<\/p>\n
Crl.A.No.348 of 2001
\n                              :: 14 ::\n<\/p>\n
\nseparate sentence under Section 498(A). Now that the<\/p>\n
conviction for the offence under Section 304(B) is being set<\/p>\n
aside and the conviction under Section 498(A) is being upheld,<\/p>\n
it is necessary to impose a separate sentence on the 1st<\/p>\n
accused\/appellant for the offence under Section 498(A) of the<\/p>\n
Code.\n<\/p>\n
           17. I take note of the fact that the property having<\/p>\n
an extent of 15 cents had been conveyed in favour of the 1st<\/p>\n
accused and the deceased as per Ext.P2 document.         It has<\/p>\n
come out in evidence that the only child of Pushpam and 1st<\/p>\n
accused, 9 months old child at the time of the death of<\/p>\n
Pushpam, is being looked after by the mother of Pushpam,<\/p>\n
PW.1. It seems that the 1st accused has not taken any earnest<\/p>\n
steps to look after the child. In the circumstances, I am of the<\/p>\n
view that the 1st accused must be sentenced to pay a<\/p>\n
reasonably high amount as fine and the said fine amount must<\/p>\n
be paid to the only child of the deceased, who is now being<\/p>\n
looked after by PW.1, as compensation under Section 357.<\/p>\n
Crl.A.No.348 of 2001
\n                              :: 15 ::\n<\/p>\n
\n            In the result, the appeal is allowed in part. The<\/p>\n
conviction and sentence imposed on the appellant\/1st accused<\/p>\n
under Section 304(B) of the Code is set aside. The conviction<\/p>\n
of the 1st accused for the offence under Section 498(A) of the<\/p>\n
Code is affirmed. The appellant\/1st accused is sentenced to<\/p>\n
undergo rigorous imprisonment for a period of 9 months. He is<\/p>\n
also directed to pay a fine of Rs.50,000\/-. The fine amount<\/p>\n
shall be deposited within three months from today. If the fine<\/p>\n
amount is not paid, he shall undergo simple imprisonment for a<\/p>\n
further period of 6 months. The fine amount, if deposited,<\/p>\n
shall be handed over to the child of Pushpam and the 1st<\/p>\n
accused, who is now a minor and in the custody of PW.1, by<\/p>\n
depositing it in the name of the minor in a Nationalized Bank.<\/p>\n
The child would be entitled to withdraw the said amount only<\/p>\n
when she becomes a major. It is made clear that if the fine<\/p>\n
amount is deposited, such deposit will have no impact on the<\/p>\n
liability of the 1st accused for maintaining his daughter. This<\/p>\n
direction to pay compensation to the child is only imposed<\/p>\n
Crl.A.No.348 of 2001
\n                               :: 16 ::\n<\/p>\n
\nunder Section 357(3) of the Code of Criminal Procedure and<\/p>\n
the Family Court, if called upon to adjudicate the liability of<\/p>\n
the 1st accused for maintenance, shall do so, regardless of the<\/p>\n
direction issued hereunder to see that the fine amount<\/p>\n
deposited by the 1st accused is paid over to the child as<\/p>\n
compensation.\n<\/p>\n<\/p>\n
                                               Sd\/-\n<\/p>\n
                                         (V.GIRI)
\n                                             JUDGE
\nsk\/<\/p>\n
                   \/\/true copy\/\/<\/p>\n
                       P.S. to Judge<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ani vs State on 12 March, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 348 of 2001(B) 1. ANI … Petitioner Vs 1. STATE … Respondent For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.GIRI Dated :12\/03\/2009 O R D E R V.GIRI, J. ————————- […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-178817","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAni vs State on 12 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ani-vs-state-on-12-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ani vs State on 12 March, 2009 - 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