{"id":247930,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/saifudeen-vs-state-of-kerala-on-16-october-2009"},"modified":"2014-09-06T12:36:21","modified_gmt":"2014-09-06T07:06:21","slug":"saifudeen-vs-state-of-kerala-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/saifudeen-vs-state-of-kerala-on-16-october-2009","title":{"rendered":"Saifudeen vs State Of Kerala on 16 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Saifudeen vs State Of Kerala on 16 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1426 of 2003()\n\n\n1. SAIFUDEEN, S\/O.MUHAMMED ABDUL KHADER,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n                For Petitioner  :SRI.KRB.KAIMAL (SR.)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :16\/10\/2009\n\n O R D E R\n                    V. RAMKUMAR , J.\n         = = = = = = = = = = = = = = = = = = = =\n               Crl. Appeal No. 1426 of 2003\n         = = = = = = = = = = = = = = = = = = = =\n         Dated this the 16th day of October, 2009.\n\n                        JUDGMENT\n<\/pre>\n
     The 1st accused in S.C. No. 291 of 1998 on the file of<\/p>\n
the     Additional  Sessions   Court,   Fast  Track   –  I,<\/p>\n
Thiruvananthapuram, challenges the conviction entered and<\/p>\n
the sentence passed against him for an offence punishable<\/p>\n
under Section 304<\/a> (B) IPC.\n<\/p>\n
     2. The case of the prosecution can be summarised as<\/p>\n
follows:-\n<\/p>\n
     A1 (Saifudeen) who is the brother of A2 (Shyla Beevi)<\/p>\n
and son of A3 (Salma Beevi) married deceased Jaseera<\/p>\n
Beevi, the daughter of CW1 (Ibrahim Kunju) on 08.09.1996<\/p>\n
as per the Muslim customary rites at Meera Sahib Hall<\/p>\n
situated near the A.R.P Camp, Pallipuram.        After the<\/p>\n
marriage, Jaseera Beevi was residing in her matrimonial<\/p>\n
home by name Kurakkode Edavilakathu House situated in<\/p>\n
Crl. Appeal No. 1426\/2003    : 2 :<\/span><\/p>\n
Edavilakom Muri of Veiloor village. Besides A1, his sister<\/p>\n
A2 and mother A3 were also residing in the said house.<\/p>\n
While so, A2 and A3 used to continuously subject deceased<\/p>\n
Jaseera Beevi to cruelty stating that the gold ornaments<\/p>\n
given to her at the time of her marriage by CW1 were old<\/p>\n
and of low quality and that they did not weigh 15<\/p>\n
sovereigns. Similarly, A1 subjected Jaseera Beevi to cruelty<\/p>\n
both physically and mentally demanding her to sell the 15<\/p>\n
cents of property which was given to her at the time of her<\/p>\n
marriage by her father CW1 and to make available to him<\/p>\n
the sale proceeds. Asking her to sell the said property and<\/p>\n
bring him the sale proceeds, A1 at the instigation of A2 and<\/p>\n
A3 took his wife Jaseera Beevi to her house and left her<\/p>\n
there.      CW1, the father of Jaseera Beevi thereupon<\/p>\n
promised to pay A1 Rs.1,50,000\/- and agreeing to the same,<\/p>\n
A1 took his wife back to the matrimonial home. During the<\/p>\n
subsequent period also, Jaseera Beevi was constantly<\/p>\n
harassed by saying that the sum of Rs.1,50,000\/- was not<\/p>\n
Crl. Appeal No. 1426\/2003    : 3 :<\/span><\/p>\n
sufficient and she should bring a sum of Rs.3,00,000\/- from<\/p>\n
her father. A2 and A3 made her life miserable with A1. On<\/p>\n
28.11.1996 at 11 a.m., Jaseera Beevi while proceeding to<\/p>\n
her house was assaulted by A1 from the vicinity of<\/p>\n
Karichara bridge. On account of the mental anguish and<\/p>\n
extreme despair due to the feeling that she would not have<\/p>\n
any more peaceful marital life, at about 11 noon, on<\/p>\n
28.11.1996, at Cherukayalkara in Edavilakom Muri of<\/p>\n
Veiloor village Jaseera Beevi committed suicide by jumping<\/p>\n
in front of an ITD goods train from Irumpanam to<\/p>\n
Thirunelveli      which came from north to south along the<\/p>\n
Thiruvananthapuram – Kollam railway line. The accused<\/p>\n
have thereby committed the offence of dowry death<\/p>\n
punishable under Section 304<\/a> B r\/w Section 34<\/a> IPC.<\/p>\n
      3.     On the accused pleading not guilty to the charge<\/p>\n
framed against them by the court below, the prosecution<\/p>\n
was permitted to adduce evidence in support of its case.<\/p>\n
The prosecution altogether examined 11 witnesses as P.Ws<\/p>\n
Crl. Appeal No. 1426\/2003      : 4 :<\/span><\/p>\n
1 to 11 and got marked 6 documents as Exts. P 1to P6 and<\/p>\n
5 material objects as Mos 1 to 5.\n<\/p>\n
      4.     After the close of the prosecution evidence, the<\/p>\n
accused were questioned under Sec. 313 (1)(b) Cr.P.C<\/a>. with<\/p>\n
regard to the incriminating circumstances appearing<\/p>\n
against them in the evidence for the prosecution.       They<\/p>\n
denied      those     circumstances  and  maintained    their<\/p>\n
innocence.\n<\/p>\n
      5.    The 1st accused made the following submissions<\/p>\n
before court:-\n<\/p>\n
      After the marriage between himself and Jaseera Beevi,<\/p>\n
they were residing in his house. Their post-marital life was<\/p>\n
very cordial and loving. There was absolutely no sort of<\/p>\n
difference of opinion or problem between them.            On<\/p>\n
28.11.1996, he had gone to Kazhakuttom after bidding leave<\/p>\n
to his wife. When he returned to the shop, Jaseera Beevi<\/p>\n
expressed a desire to go home. He did not permit her to go<\/p>\n
and instead, asked her to go to the shop at Kazhakuttom for<\/p>\n
Crl. Appeal No. 1426\/2003    : 5 :<\/span><\/p>\n
doing certain work in the shop. Thereafter, it was while he<\/p>\n
was returning with certain articles from the shop that he<\/p>\n
came to know that Jaseera Beevi was dead due to train<\/p>\n
accident.      He went to the place of occurrence.  He had<\/p>\n
participated in the funeral also.   The parents of Jaseera<\/p>\n
Beevi had demanded her gold ornaments.          They   were<\/p>\n
returned to them through the Mangalapuram Police          as<\/p>\n
insisted by him and a receipt was also obtained. Thereafter,<\/p>\n
the present case was foisted against him, his sister and<\/p>\n
mother alleging that the gold ornaments were not returned.<\/p>\n
      6. The accused did not adduce any defence evidence<\/p>\n
when called upon to enter on their defence.<\/p>\n
      7. The learned Additional Sessions Judge, after trial,<\/p>\n
as per judgment dated 29.07.2003 acquitted A2 and A3 of<\/p>\n
the offence charged against them, but convicted the<\/p>\n
appellant\/1st accused of the offence punishable under<\/p>\n
Section 304<\/a> (B) IPC. For the said conviction, the appellant<\/p>\n
Crl. Appeal No. 1426\/2003       : 6 :<\/span><\/p>\n
 was sentenced to rigorous imprisonment for 7 years. Set<\/p>\n
off under Section 428<\/a> Cr.P.C was given to him. It is the said<\/p>\n
judgment which is assailed in this appeal.<\/p>\n
      8. I heard the learned counsel for the appellant and<\/p>\n
the learned Public Prosecutor.\n<\/p>\n
      9. PW1 (Arifa Beevi) is the elder sister of deceased<\/p>\n
Jaseera Beevi. Her evidence is to the following effect:-<\/p>\n
          She is residing near the C.R.P camp, Pallipuram. She<\/p>\n
    is employed as the senior technician in the Thermo Pen<\/p>\n
    Board at Puliyarakonam. Jaseera Beevi was her younger<\/p>\n
    sister. Her father and mother and A1 are the persons<\/p>\n
    residing in her ancestral house. The marriage of Jaseera<\/p>\n
    Beevi was on 08.09.1996 at Meera Sahib hall near C.R.P<\/p>\n
    camp at Pallipuram. For the marriage 15 cents of land,<\/p>\n
    gold    ornaments    worth  15   sovereigns,  cash  worth<\/p>\n
    Rs.20,000\/- and a gold ring were given.         It was an<\/p>\n
    arranged marriage. After the marriage, A1 and Jaseera<\/p>\n
    Beevi started residing in the house of A1 at Edavilakom.<\/p>\n
    The parents of A1 and A2 (Shyla Beevi – who is the 4th<\/p>\n
Crl. Appeal No. 1426\/2003         : 7 :<\/span><\/p>\n
    sister of A1) were residing in that house. A3 is the mother<\/p>\n
    of A1. Two weeks after the marriage, PW1 and her sister-<\/p>\n
    in-law had called Jaseera Beevi for a get-together. A1 and<\/p>\n
    Jaseera Beevi visited them after one month of the<\/p>\n
    marriage.     At that time, a gold ring weighing 3\/4 of a<\/p>\n
    sovereign was presented to her sister.      At the time of<\/p>\n
    marriage, PW1 had given her sister a gold ring weighing<\/p>\n
    3\/4 sovereign.     Jaseera’s father-in-law was treating her<\/p>\n
    very affectionately. She also loved her father-in-law very<\/p>\n
    much. But A2 and A3 used to physically and mentally<\/p>\n
    harass Jaseera saying that the gold ornaments given to<\/p>\n
    Jaseera were not weighing 15 sovereigns and that they<\/p>\n
    were of poor quality. She told PW1 that her husband (A1)<\/p>\n
    was not loving her and was always beating her and he was<\/p>\n
    always sleeping at home without going for a job and she<\/p>\n
    was finding it difficult to stay there. PW1 advised her that<\/p>\n
    after all it was her matrimonial home and the attitude<\/p>\n
    would change and she will have to put up with those<\/p>\n
    difficulties. PW1 is residing separately. When PW1 paid a<\/p>\n
    visit to her ancestral house Jaseera Beevi was there and<\/p>\n
Crl. Appeal No. 1426\/2003      : 8 :<\/span><\/p>\n
    she told PW1 that A1 had left her there on the 11th. The<\/p>\n
    reason for leaving her there was that A1 wanted to<\/p>\n
    purchase 40 cents of land belonging to his sister Sabeena<\/p>\n
    Beevi and to enable the said wish of A1 to materialise the<\/p>\n
    15 cents given to Jaseera Beevi was to be immediately sold<\/p>\n
    and the sale proceeds to be handed over to him. After<\/p>\n
    about 10 or 12 days, PW2 had a talk with the father of A1<\/p>\n
    and had agreed to give Rs. 1,50,000\/- after disposing of<\/p>\n
    the property. On the basis of the said offer made by PW2,<\/p>\n
    A1 took Jaseera Beevi back to the matrimonial home.<\/p>\n
    About 2 or 3 days thereafter, PW2 had been to the house<\/p>\n
    of PW1 and he told her that Jaseera has still problem in<\/p>\n
    her matrimonial home and that they were asking for Rs.3<\/p>\n
    lakhs for purchasing the property of Sabeena. One day,<\/p>\n
    that is on 28.11.1996 at about 6 p.m., while PW1 was<\/p>\n
    returning home from her work place she came to know<\/p>\n
    that her sister Jaseera was dead. She believes that her<\/p>\n
    sister died due to the constant persecution by her<\/p>\n
    husband, mother-in-law and sister (A1 to A3). It was a<\/p>\n
    dowry harassment. Manichi (PW3) was PW1’s classmate.<\/p>\n
Crl. Appeal No. 1426\/2003       : 9 :<\/span><\/p>\n
    PW3 had told her that when PW3 had gone to take bath,<\/p>\n
    she    had    met   Jaserra Beevi   and  they   exchanged<\/p>\n
    pleasantries and thereafter, A1 who was sitting near the<\/p>\n
    bridge beat Jaseera Beevi and had given her a push and<\/p>\n
    A1 was dissuaded from further assaulting Jaseera Beevi by<\/p>\n
    Muhammadali (PW4) and Jaseera Beevi had taken leave of<\/p>\n
    Manichi. PW1 had given a statement to the police. It was<\/p>\n
    unable to bear with the cruelty in the house of A1 that her<\/p>\n
    sister ended her life by jumping in front of a train. MO1<\/p>\n
    series are the gold bangles of Jaseera Beevi. MO2 is the<\/p>\n
    gold chain and MO3 is the gold ring, MO4 is the matty<\/p>\n
    and MO5 series are the pair of ear studs of her sister.<\/p>\n
    At the time of Jaseera Beevi’s marriage A2 was taking rest<\/p>\n
    after child’s birth. It was 15 days after the marriage of<\/p>\n
    Jaseera Beevi that PW1 and her sister in law went there.<\/p>\n
    She has not gone there thereafter. When they went there<\/p>\n
    A2 and A3 were there. They did not demand anything<\/p>\n
    from her either during the said occasion      or any time<\/p>\n
    thereafter. She has seen them ill-treating her sister in her<\/p>\n
    presence. On the day on which A1 and Jaseera Beevi had<\/p>\n
Crl. Appeal No. 1426\/2003       : 10 :<\/span><\/p>\n
    paid a visit to PW1’s house A1 had beat Jaseera Beevi on<\/p>\n
    her back and had dragged her. The reason for the said<\/p>\n
    beating was on the ground that she had come late. PW1<\/p>\n
    did not tell this to the Police. She had told her parents<\/p>\n
    about the dowry issue of her sister and that Jaseera Beevi<\/p>\n
    was being ill-treated for not selling the property. A1 had<\/p>\n
    been to the ancestral home of PW1 along with Jaseera<\/p>\n
    Beevi thrice. She had heard that after going there, one<\/p>\n
    week after their marriage, A1 had left Jaseera Bevi in her<\/p>\n
    house on 11.11.1996.       The reason for leaving Jaseera<\/p>\n
    Beevi in her house was for selling 15 cents of land and<\/p>\n
    making the sale proceeds available to him.              This<\/p>\n
    information was conveyed to her by Jaseera Beevi on the<\/p>\n
    15th. Jaseera Beevi was given 15 cents of land by way of<\/p>\n
    gift deed executed by her father prior to her marriage.<\/p>\n
    That document is in her house and it can be produced. It<\/p>\n
    is not correct to say that not even a cent of land was given<\/p>\n
    to Jaseera Beevi. MOs.1 to 5 were the ornaments which<\/p>\n
    Jaseera Beevi was always wearing.       After the death of<\/p>\n
    Jaseera Beevi, the other ornaments kept in her table were<\/p>\n
Crl. Appeal No. 1426\/2003       : 11 :<\/span><\/p>\n
    handed over to PW1’s father by the Police on the strength<\/p>\n
    of a receipt.       It was PW2 who had told her that<\/p>\n
    Rs.1,50,000\/- was not enough and they wanted Rs.3 lakhs.<\/p>\n
    Her sister had told her that A1 used to physically assault<\/p>\n
    her. She had not told this to the Police. But she is not<\/p>\n
    lying before court. Jaseera Beevi had told her about the<\/p>\n
    physical assault made by A1. PW3 Manichi is her friend.<\/p>\n
    One has to cross the Kaniyapuram and Murikkumpuzha<\/p>\n
    road and the railway line for going to the ancestral home<\/p>\n
    of PW1 from the house of A1. There is a pathway leading<\/p>\n
    to the railway line and it is after crossing the railway line<\/p>\n
    that they go to their ancestral home. There are walls on<\/p>\n
    the either side of the pathway. One can go through that<\/p>\n
    way also. It is possible to go beneath the bridge as well.<\/p>\n
    It is not correct to say that Jaseera Bevi died accidentally<\/p>\n
    while crossing the railway line. It is not correct to say that<\/p>\n
    her sister did not suffer any ill-treatment or harassment<\/p>\n
    from the accused persons and that they were all living<\/p>\n
    peacefully. One she heard was that the accused used to sit<\/p>\n
    in the shop belonging to his father. After the marriage he<\/p>\n
Crl. Appeal No. 1426\/2003       : 12 :<\/span><\/p>\n
    was not in the habit of going to the shop and is sleeping as<\/p>\n
    if he were under the influence of drugs. Jaseera Beevi had<\/p>\n
    told her that she was sad, because her husband was not<\/p>\n
    going to work and there was no property of his own.<\/p><\/blockquote>\n
\n
       10. PW2 (Basheer) is a driver by avocation. He had<\/p>\n
married the elder sister of Jaseera Beevi. He also spoke<\/p>\n
about the marriage of Jaseera Beevi and the dowry given<\/p>\n
to A1 at the time of her marriage. The relevant portion of<\/p>\n
his evidence reads as follows:-\n<\/p>\n
           A1’s father was having a grocery shop. After the<\/p>\n
    marriage of Jaseera Beevi, PW2 had gone to A1’s house to<\/p>\n
    invite them for a get together. A1 was not in his house.<\/p>\n
    A1 was invited from his shop. They did not respond to the<\/p>\n
    invitation saying that they do not have time. He used to go<\/p>\n
    to the ancestral home of Jaseera Beevi. 15 cents of land<\/p>\n
    was carved out and given. He was also involved in getting<\/p>\n
    the documents prepared. CW1 the father of Jaseera Beevi<\/p>\n
    had told him that A1 had left Jaseera in her ancestral<\/p>\n
    home. When PW2 asked him the reason, CW1 told him<\/p>\n
Crl. Appeal No. 1426\/2003      : 13 :<\/span><\/p>\n
    that A1 had asked him to sell the 15 cents of land and give<\/p>\n
    him the sale proceeds. PW2 had mediated in the matter as<\/p>\n
    was authorized. He had gone to A1’s shop. At that time<\/p>\n
    A1 was not there but his father was available in the shop.<\/p>\n
    After some time A1 also came there. They had talked for<\/p>\n
    some time and after which the agreement was that if a<\/p>\n
    sum of Rs,1,50,000\/- was given, they would execute a deed<\/p>\n
    in his favour for 15 cents. He agreed to pay the money<\/p>\n
    within one month and told CW1 about it.          The other<\/p>\n
    sisters of A1’s wife were also informed. After about 3 to 4<\/p>\n
    days when he had been to the shop of A1’s father he came<\/p>\n
    to know that Jaseera Beevi was taken back. About 4 to 5<\/p>\n
    days thereafter A1’s father had called him and told that it<\/p>\n
    was not possible to purchase the property of Sabeena for<\/p>\n
    Rs.1,50,000\/- and that they wanted 3 lakhs. PW2 told him<\/p>\n
    that it was not possible for him to agree to this demand.<\/p>\n
    Then A1’s father told him that if the money was not paid,<\/p>\n
    A1 would leave Jaseera in her ancestral home and that<\/p>\n
    almost every day there were quarrels between A1 and<\/p>\n
    Jaseera on account of this issue. PW2 offered to sell the<\/p>\n
Crl. Appeal No. 1426\/2003     : 14 :<\/span><\/p>\n
    property to anybody else. PW2 informed the matter to<\/p>\n
    Jaseera’s father. When he came to know of the death of<\/p>\n
    Jaseera he was aware that it was due to the constant<\/p>\n
    harassment by A1 and his family members. He had given<\/p>\n
    a statement to Police. The fact that Jaseera Beevi was<\/p>\n
    treated with cruelty was once told by PW1 when the latter<\/p>\n
    had gone to his house. She had also told him that A1 had<\/p>\n
    beaten Jaseera when they had paide a visit to     PW1’s<\/p>\n
    house. The distance between the house of A1 and A1’s<\/p>\n
    shop was about 100 meters. He had been to the shop of<\/p>\n
    A1’s father 2 or 3 times. That was in connection with the<\/p>\n
    mediation talk. Besides his father, A1 was also insisting<\/p>\n
    that the property was to be sold and the sale proceeds<\/p>\n
    made available to him. The document in favour of Jaseera<\/p>\n
    Beevi is with CW1 who might have shown it to the Police.<\/p><\/blockquote>\n
\n
      11. PW3 (Manichi) is a resident of Sree Pathanam<\/p>\n
colony. She was having a grocery shop. She knew both<\/p>\n
Jaseera Beevi as well as PW1.          The last time she saw<\/p>\n
Jaseera Beevi was on 28.11.1996 at a time when she had<\/p>\n
Crl. Appeal No. 1426\/2003     : 15 :<\/span><\/p>\n
come to take bath in the Cheruvakkal thodu. The time was<\/p>\n
about 11 a.m. She had seen Jaseera Beevi coming from<\/p>\n
Kurakkoot area. Both of them had pleasantries           Jaseera<\/p>\n
told her that she was coming from her matrimonial home.<\/p>\n
Thereafter       Jaseera  Beevi  went   towards   the    bridge<\/p>\n
[Eventhough this witness was cited to prove that from the<\/p>\n
vicinity of bridge A1 had beaten Jaseera Beevi, she did not<\/p>\n
support this part of the prosecution This witness was treated as<\/p>\n
hostile to the prosecution and was cross-examined by the Public<\/p>\n
Prosecutor.]      What Jaseera Beevi told her was about her<\/p>\n
problems in the matrimonial home and that her husband<\/p>\n
was compelling her to sell her property and almost every<\/p>\n
day there used to be quarrels. PW3 deposed that it was on<\/p>\n
28.11.1996 when she met Jaseera Beevi that she came to<\/p>\n
know that Jaseera was married. Cheruvarakkal Thodu and<\/p>\n
Kalluvarambal Thodu are one and the same. On that day<\/p>\n
Jaseera was wearing black churidar with a shawl.<\/p>\n
      12. PW4 (Mohammedali) is running a pan shop at a<\/p>\n
Crl. Appeal No. 1426\/2003     : 16 :<\/span><\/p>\n
place called Karichara. He knows deceased Jaseera Beevi.<\/p>\n
He had attended her marriage. She died on 28.11.1996.<\/p>\n
On that day he was proceeding on his bicycle to<\/p>\n
Murikkumpuzha for purchasing commodities. He had seen<\/p>\n
Jaseera Beevi near the bridge. She was accompanied by<\/p>\n
her husband (A1) and both were engaged in a quarrel. He<\/p>\n
intervened in their scuffle and separated them.      At that<\/p>\n
time PW3 (Manichi) was taking bath in the Cheruvikkal\/<\/p>\n
Kalluvarambil thodu. He went to         Murikkumpuzha and<\/p>\n
returned back at about 1 p.m.        By that time news was<\/p>\n
spread that a lady had been run over by the train. When he<\/p>\n
went there he found that it was Jaseera Beevi.      He had<\/p>\n
attended her funeral. He told to Jaseera’s father about what<\/p>\n
he saw.      The reason for her death could be the discord<\/p>\n
between Jaseera Beevi and her husband. Jaseera Beevi was<\/p>\n
found near the Varambha of the thodu below the bridge.<\/p>\n
He     was     proceeding  from    south to  north  towards<\/p>\n
Murikkumpuzha. The bridge is also running north-south.<\/p>\n
Crl. Appeal No. 1426\/2003    : 17 :<\/span><\/p>\n
On either side of the bridge there are thodus. On can enter<\/p>\n
the railway line by proceeding along the ridge (varamba).<\/p>\n
It is called Cheruvarakkal thodu. There are bathing-ghats<\/p>\n
at several points. The height difference between thodu and<\/p>\n
the bridge would be about the height of two persons. There<\/p>\n
is a hand rail on the either side of the bridge. He did not go<\/p>\n
near the quarrelling spouses on 28.11.1996. He put his<\/p>\n
cycle on the stand. A1 was wearing a shirt and mundu and<\/p>\n
Jaseera Beevi was wearing saree and blouse. He is not able<\/p>\n
to clearly remember the dress worn by A1 and Jaseera<\/p>\n
Beevi.\n<\/p>\n
\n
      13. PW5(Aysha Beevi) is the mother of the deceased.<\/p>\n
She was aged 70 years while giving evidence in the year<\/p>\n
2003. The main part of her testimony is as follows:<\/p>\n
      She is residing at Karichara. Deceased Jaseera Beevi<\/p>\n
was her youngest daughter. Jaseera Beevi was given in<\/p>\n
marriage to A1 who is the son of A3(Salma Beevi). At the<\/p>\n
Crl. Appeal No. 1426\/2003     : 18 :<\/span><\/p>\n
time of marriage 15 sovereign of gold ornaments, 15 cents<\/p>\n
of land and cash worth Rs.20,000\/- were given as dowry.<\/p>\n
The marriage was on 8.9.1996. After the marriage she was<\/p>\n
residing with the accused. About one or two weeks prior to<\/p>\n
her death, A1 had left her in the house of PW5.         Her<\/p>\n
daughter told her that the reason for her husband leaving<\/p>\n
her there was on the allegation that the gold ornaments<\/p>\n
were of poor quality and they did not get 15 cents of land<\/p>\n
given to her sold and sale proceeds given to him. It was<\/p>\n
after the intervention of PW2 (Basheer) that she was taken<\/p>\n
back on the promise that the property would be sold within<\/p>\n
one month and the sale proceeds would be given.         The<\/p>\n
death of Jaseera Beevi is on the eighth day after she was<\/p>\n
taken back. She had jumped in front of a running train and<\/p>\n
committed suicide.        It was unable to bear with the ill-<\/p>\n
treatment given by A1 to A3 with regard to the gold<\/p>\n
ornaments given to Jaseera Beevi that she committed<\/p>\n
suicide. Nobody was entrusted for mediating the matter<\/p>\n
Crl. Appeal No. 1426\/2003    : 19 :<\/span><\/p>\n
but her nephew (PW2) had intervened and promised to pay<\/p>\n
the money after selling the property. The demand was for<\/p>\n
Rs.3 lakhs.        She is not giving false evidence at the<\/p>\n
instigation of PW2(Basheer).\n<\/p>\n
      14.     PW6(Vijayan) hailing from Veiloor is the eye-<\/p>\n
witness to Jaseera Beevi jumping in front of a running train<\/p>\n
and committing suicide.     The main part of his testimony is<\/p>\n
as follows:-\n<\/p>\n
      He resides at Varikkumukku. He knows Jaseera Beevi.<\/p>\n
He along with one Shukkur, Salim, Sasi(PW7) etc. were<\/p>\n
engaged in a chat at Cheruvakkara. While so, he proceeded<\/p>\n
towards the railway track for passing urine. At that time he<\/p>\n
saw Jaseera Beevi walking near the railway track. This took<\/p>\n
place about 5 or 6 years ago. He does not remember the<\/p>\n
date. A goods train came from Trivandrum side. When the<\/p>\n
train reached closer, Jaseera Beevi jumped in front of the<\/p>\n
train. Then he called his friends and showed it. She was<\/p>\n
wearing a black churidar and yellow shawl.          She was<\/p>\n
Crl. Appeal No. 1426\/2003     : 20 :<\/span><\/p>\n
wearing ornaments. The time was about 12 noon. It was<\/p>\n
the railway track at Cherukayalkara. It is a hilly area at<\/p>\n
that spot. The railway track is at the foot of the hill. The<\/p>\n
height would be about that of two persons. The matter was<\/p>\n
informed to Jaseera Beevi’s relatives through telephone.<\/p>\n
Basheer (PW2) is his neighbour. Jaseera Beevi was wearing<\/p>\n
a black churidar and top with an yellow shawl. PW6 and<\/p>\n
others were standing about 10 or 35 meters away from the<\/p>\n
pathway         which    proceeds   westwards   from     the<\/p>\n
Cherukayalkara bus stop.         There is compound wall on<\/p>\n
either side of the said pathway.     The railway line has a<\/p>\n
curve at that spot.\n<\/p>\n
      15. PW7 (Sasi) is a resident of Varikkumukku at<\/p>\n
Murikkumpuzha. He is an attestor to Ext.P2 Inquest report<\/p>\n
prepared by the Tahsildar, Thiruvananthapuram. He was in<\/p>\n
the company of PW6 when the occurrence took place.<\/p>\n
      16.    PW8 (Dr.R.Meera Nair) who was a lecturer in<\/p>\n
Forensic Medicine, Medical College, Thiruvananthapuram<\/p>\n
Crl. Appeal No. 1426\/2003    : 21 :<\/span><\/p>\n
conducted the autopsy of the dead body of Jaseera Beevi on<\/p>\n
29.11.1996. Ext.P3 is the post mortem certificate prepared<\/p>\n
by PW8. Ext.P3 shows that the body of Jaseera Beevi was<\/p>\n
brought in five parts as follows:-\n<\/p>\n
  1. Crushed soft tissue and bones of right elbow.<\/p>\n
  2. Crushed soft tissue and bones of right hand.<\/p>\n
  3. Crushed soft tissue and bones of left leg and foot from<\/p>\n
     knee downwards.\n<\/p>\n
  4. Right foot and<\/p>\n
  5. rest of the body.\n<\/p>\n
      There were 17 injuries on the body. Six of her ribs on<\/p>\n
the right side were fractured.      The cause of death as<\/p>\n
concluded in Ext.P3 was that it was due to multiple injuries.<\/p>\n
There were grease stains on the under aspect of left foot.<\/p>\n
        PW8 has deposed that the multiple injuries noted in<\/p>\n
Ext.P3 could be caused by the hitting of a running train<\/p>\n
against a person walking through the railway track. She<\/p>\n
clarified it in re-examination by saying that the injuries<\/p>\n
Crl. Appeal No. 1426\/2003      : 22 :<\/span><\/p>\n
were possible when the person was walking through the<\/p>\n
railway track facing the train and and that the hitting must<\/p>\n
have been against the front portion of the body.<\/p>\n
      17.     PW9     (S.Bahuleyan)  was the  Tahsildar   of<\/p>\n
Thiruvananthapuram who was also having the powers of the<\/p>\n
Executive Magistrate. Inquest over the dead body of the<\/p>\n
deceased Jaseera Beevi was held by PW9.        Ext.P2 is the<\/p>\n
inquest report.\n<\/p>\n
      18. PW10( Sreekumar) was the Sub Inspector of Police,<\/p>\n
Mangalapuram.           He proved Ext.P4 First Information<\/p>\n
Statement given by CW1, the father of deceased Jaseera<\/p>\n
Beevi and registered the case as Crime No.324 of 1994<\/p>\n
under the caption “unnatural death” under Section 174<\/a><\/p>\n
Cr.P.C. During the course of investigation, he filed Ext.P5<\/p>\n
report to include Section 304B<\/a> read with 34 IPC<\/a> and to<\/p>\n
delete Section 174<\/a> Cr.P.C; and also to add the names of A1<\/p>\n
to A3 in the array of accused.          He arrested A1   on<\/p>\n
18.1.1997 at 8.30 A.M from Purakode.          During cross-<\/p>\n
Crl. Appeal No. 1426\/2003     : 23 :<\/span><\/p>\n
examination he admitted that he did not see the document<\/p>\n
as per which 15 cents of land was given to the deceased.<\/p>\n
      19. PW11(Sasidharan) was the Dy.S.P, Attingal.    He<\/p>\n
had only verified the investigation conducted by PW10. The<\/p>\n
charge was laid by CW24. PW11 also admitted that he did<\/p>\n
not see the document relating to 15 cents of land given to<\/p>\n
the deceased. He has deposed that CW1 had told him that<\/p>\n
the deceased told CW1 that the accused were continuously<\/p>\n
harassing her saying that the gold given to her was old.<\/p>\n
      20. The learned counsel for the appellant made the<\/p>\n
following submissions before me in support of his fervent<\/p>\n
plea for the acquittal of the appellant:-\n<\/p>\n
      There is absolutely no evidence of any demand for<\/p>\n
dowry deposed to by any of the prosecution witnesses.<\/p>\n
Except the oral vibrations of PWs.1,2 and 5 that 15 cents of<\/p>\n
land was given to the deceased at the time of her marriage,<\/p>\n
there is no acceptable evidence to prove the same. PW2<\/p>\n
even claim to have seen the document. He had allegedly a<\/p>\n
Crl. Appeal No. 1426\/2003     : 24 :<\/span><\/p>\n
role to play        while 15 cents of land was given to the<\/p>\n
deceased. PW1 even offered to produce the document but<\/p>\n
no document by way of gift has been produced before court.<\/p>\n
If so, the testimony of the prosecution witnesses that the<\/p>\n
accused persons had been pestering insisted the deceased<\/p>\n
to sell the property and to make over the sale proceeds so<\/p>\n
as to enable him to purchase his sister’s property cannot be<\/p>\n
believed for a moment. It is true that PW1 had deposed<\/p>\n
that A1 had beaten the deceased in her presence. But that<\/p>\n
beating was not in connection with any demand for dowry,<\/p>\n
but it was for coming late. The deceased was evidently<\/p>\n
going northwards along the eastern edge of the railway<\/p>\n
track which is lying north-west. That explains the presence<\/p>\n
of grease on the bottom of her left foot. If she had been<\/p>\n
walking along the railway track both her legs ought to have<\/p>\n
been smeared with grease. The mere fact that her left leg<\/p>\n
alone was smeared with grease as revealed by Ext.P3 post<\/p>\n
mortem report shows that she might have been walking<\/p>\n
Crl. Appeal No. 1426\/2003    : 25 :<\/span><\/p>\n
along the edge of the railway track where alone grease<\/p>\n
could ordinarily be found. Going by the testimony of PW6,<\/p>\n
the deceased was jumping before the running train from<\/p>\n
sideways. But the evidence of PW8 and the Post mortem<\/p>\n
report would indicate that the deceased must have been<\/p>\n
proceeding facing the running train.     If that version is<\/p>\n
accepted the testimony of PW6 that she jumped onto the<\/p>\n
running train from the side of the track could not be true.<\/p>\n
CW1 the father of the deceased Jaseera Beevi has not been<\/p>\n
examined by the prosecution.       He was the person who<\/p>\n
lodged the First Information Statement. It was to him that<\/p>\n
the deceased had allegedly disclosed her bitter experience<\/p>\n
in the matrimonial home. The non-examination of CW1 is,<\/p>\n
therefore, very crucial.     When there is no acceptable<\/p>\n
evidence to show that the deceased was ill-treated soon<\/p>\n
before her death and such ill-treatment was in connection<\/p>\n
with any demand for dowry, merely because she died 2<\/p>\n
months of her marriage, it cannot be said that the offence<\/p>\n
Crl. Appeal No. 1426\/2003      : 26 :<\/span><\/p>\n
under Section 304(B)<\/a>IPC is attracted. There is no warrant<\/p>\n
for invoking the provision under Section 113B<\/a> of the<\/p>\n
Evidence Act.         The conviction entered overlooking the<\/p>\n
above aspects cannot be sustained, The appellant relies on<\/p>\n
the decisions State of Kerala v. Mohanan Pillai<\/a> (1991(1)<\/p>\n
KLT 494), Biswajit Halder @Babu Halder and others v.<\/p>\n
State of West Bengal<\/a> (2008(1)SCC 2002) and Inderpal<\/p>\n
V. State of Madhya Pradesh<\/a> (2001(10)SCC 736).<\/p>\n
             21. I am afraid that I cannot agree with the above<\/p>\n
submissions. The testimony of P.W.1, the elder sister of the<\/p>\n
deceased clearly shows that the deceased had told her that<\/p>\n
A2 and A3 were constantly ill-treating her physically and<\/p>\n
mentally saying that       the gold given at the time of her<\/p>\n
marriage was less than 15 sovereigns and that they were of<\/p>\n
poor quality. It is true that the said allegation is against A2<\/p>\n
and A3 who have been acquitted by the court below. But<\/p>\n
then, instead of A1 defending her or going to her rescue, he<\/p>\n
was also beating her and snoring         in the house without<\/p>\n
Crl. Appeal No. 1426\/2003     : 27 :<\/span><\/p>\n
going for any work. The further statement of P.W1 shows<\/p>\n
that A1 left Jaseera Beevi in her parental home and the<\/p>\n
reason for the same was that the 15 cents of land given to<\/p>\n
her by her father was not sold and the sale proceeds handed<\/p>\n
over to A1 to enable him to purchase 40 cents        of land<\/p>\n
belonging to his sister Sabeena. This statement of P.W.1<\/p>\n
was not challenged in cross-examination. No doubt, it was<\/p>\n
put to her that not even a cent of land was given to her.<\/p>\n
That suggestion was emphatically denied by her.         The<\/p>\n
conduct of A1 was that unless and until he was given a<\/p>\n
promise through P.W.2 (Basheer) that the property would<\/p>\n
be sold for Rs. 1,50,000\/- and the sale proceeds would be<\/p>\n
given to him, he was not prepared to take his wife to her<\/p>\n
matrimonial home.         Eventhough he took her back to his<\/p>\n
house, P.W2 says that the simmering problem did not end<\/p>\n
there and that the demand was enhanced to Rs. 3,00,000\/-.<\/p>\n
It was in the cross-examination of P.W.1 that A1 elicited<\/p>\n
that at a time when Jaseera Beevi and A1 paid a visit to<\/p>\n
Crl. Appeal No. 1426\/2003    : 28 :<\/span><\/p>\n
P.W1’s house A1 had beaten Jaseera in her presence and<\/p>\n
the beating was on her back and she was thereafter<\/p>\n
dragged. No doubt, the reason given for the beating was<\/p>\n
that it was for coming late.    The subsequent statement of<\/p>\n
P.W.1 also shows that it was the demand for more money<\/p>\n
that became a torment for Jaseera in her matrimonial home<\/p>\n
and P.W.1 had occasion to mention the same to her parents.<\/p>\n
At page 11 of her deposition, PW1 re-iterated that it was<\/p>\n
with a demand for sale of 15 cents of property and hand<\/p>\n
over the sale proceeds to A1 that Jaseera was taken to her<\/p>\n
parental home on 11-11-1996.          At page 12 of    her<\/p>\n
deposition PW1 has stated that the deceased had told her<\/p>\n
that A1 used to inflict corporal    assault  on her . The<\/p>\n
testimony of P.W.2 that 15 cents of land         had been<\/p>\n
measured and carved out and it was with his involvement<\/p>\n
that the document was prepared was not challenged in<\/p>\n
cross-examination.         P.W.2 has also credibly deposed<\/p>\n
before Court that A1 had       demanded to P.W.2 that 15<\/p>\n
Crl. Appeal No. 1426\/2003       : 29 :<\/span><\/p>\n
cents of land had to be sold and sale            proceeds to be<\/p>\n
handed over to him. The further statement of P.W.2 at<\/p>\n
page       5 of his deposition is that initially the demand was<\/p>\n
for Rs. 1,50,000\/- and A1’s father later on told him that it<\/p>\n
would       be    insufficient and    that   Rs.3,00,000\/-  was<\/p>\n
subsequently demanded. The above testimony of PW2 has<\/p>\n
not been challenged in cross-examination.            Eventhough<\/p>\n
P.W.3 (Manichi) did not fully support the prosecution by<\/p>\n
telling the court that she did not see A1 beating his wife<\/p>\n
Jaseera Beevi from the vicinity of the bridge on 28-11-1996,<\/p>\n
she, however, stated that Jaseera who was her friend told<\/p>\n
her at about 11 a.m. on 28-11-1996 that her husband was<\/p>\n
compelling her to sell her properties and almost every day<\/p>\n
there used to         be quarrels and problems in their house.<\/p>\n
This according to P.W.3 could be the reason for her death.<\/p>\n
It was the heart-rending             plight of Jaseera in her<\/p>\n
matrimonial home which she had divulged to her friend<\/p>\n
Manichi which struck Manichi to hold the belief that<\/p>\n
Crl. Appeal No. 1426\/2003     : 30 :<\/span><\/p>\n
Jaseera died because of ill-treatment and the unlawful<\/p>\n
demand for more money. If what was uppermost in the<\/p>\n
mind of A1 and his family members was the non-fulfillment<\/p>\n
of their demand to sell the property given to Jaseera Beevi<\/p>\n
and the consequent handing over the sale proceeds and if<\/p>\n
this was the reason for his taking her to her parental home<\/p>\n
and leaving         there, the scuffle between the spouses<\/p>\n
witnessed by Muhammedali (PW4) could also be a<\/p>\n
manifestation of A1’s rancour towards his wife in not<\/p>\n
obeying his directions.      If that part of his testimony that<\/p>\n
he intervened and separated them from fighting is<\/p>\n
eschewed from consideration in view of his statement<\/p>\n
during cross-examination that he did not go near them, the<\/p>\n
fact remains that he had seen the quarrel between the<\/p>\n
spouses. The root cause for the quarrel as spoken to by<\/p>\n
P.Ws.1 to 3 could only be the demand for sale of the<\/p>\n
property given to Jaseera by her father and to hand over the<\/p>\n
sale proceeds to A1 for purchasing her sister’s property.<\/p>\n
Crl. Appeal No. 1426\/2003     : 31 :<\/span><\/p>\n
This demand was also for or in connection with a demand<\/p>\n
for dowry. The accusation by A2 and A3 (sister and mother<\/p>\n
of A1) that the gold given did not measure 15 sovereign and<\/p>\n
was of inferior quality, was not taken exceptions to by A1.<\/p>\n
Far from that he too inflicted corporal torture on her and<\/p>\n
even took the deceased to her own parental house and left<\/p>\n
her there.       Going by the Explanation under Section 304<\/a><\/p>\n
(b) I.P.C<\/a>. the expression “dowry” is to be understood as<\/p>\n
defined under Sec. 2 of the Dowry Prohibition Act<\/a>, 1961,<\/p>\n
which means any property or valuable security given or<\/p>\n
agreed to be given either directly or indirectly by one party<\/p>\n
to a marriage to the other party to the marriage or by the<\/p>\n
parent      of either party to a    marriage or by any other<\/p>\n
person, to either party to the marriage or to any other<\/p>\n
person at or before or any time after the marriage. The<\/p>\n
words       “in connection with the marriage of the said<\/p>\n
parties”, in Section 2<\/a> of the Dowry Prohibition Act, were<\/p>\n
substituted for the words” in consideration of the<\/p>\n
Crl. Appeal No. 1426\/2003      : 32 :<\/span><\/p>\n
marriage”. Therefore, the property demanded, agreed to be<\/p>\n
paid or paid need not be in consideration of the marriage.<\/p>\n
It is enough if        it is done so in connection  with the<\/p>\n
marriage. If so, the cruelty or harassment by A1 and his<\/p>\n
relatives A2 and A3 was in connection with a demand for<\/p>\n
dowry as defined under Section 2<\/a> of the Dowry Prohibition<\/p>\n
Act, 1961. The property demanded or agreed to be given<\/p>\n
need not be in consideration of the marriage, but need only<\/p>\n
be in connection with the marriage.\n<\/p>\n
      22. There cannot be any quarrel regarding the<\/p>\n
proposition laid down in 1991 (1) KLT 494 (supra)        and<\/p>\n
Sudhakar and Another v. State of Maharashtra-2008<\/a><\/p>\n
(1) SCC 202.          That is a proposition which is equally<\/p>\n
applicable in      the case every prosecution. Unless there is<\/p>\n
evidence to make out the offence, the accused facing trial<\/p>\n
cannot be convicted for the offence.\n<\/p>\n
      23. The harassment and ill-treatment spoken to by P.Ws<\/p>\n
1 to 3 , no doubt are as represented to them by the<\/p>\n
Crl. Appeal No. 1426\/2003      : 33 :<\/span><\/p>\n
deceased.         In the normal course the above statement of<\/p>\n
those witnesses should be hit by the rule of hearsay<\/p>\n
evidence under Sec. 60 of the Evidence Act<\/a>. Clause (1) of<\/p>\n
Sec. 32 (1) of the Evidence Act<\/a> is one of the well known<\/p>\n
exceptions to the above rule . When the statement is made<\/p>\n
by a person either as to cause of death, or as to any of the<\/p>\n
circumstances of the transaction which resulted in his<\/p>\n
death, in cases in which the cause of that person’s death<\/p>\n
comes into question, such statements are relevant whether<\/p>\n
the person who made them was or was not at the time<\/p>\n
when they were made, under expectation of death, and<\/p>\n
whatever may be the nature of proceeding in which the<\/p>\n
cause of his death comes into question.     The words “any of<\/p>\n
the circumstances of the transaction which resulted in his<\/p>\n
death” occurring in Sec. 32 (1) of the Evidence Act<\/a> have<\/p>\n
been placed under a wide canvass by the Apex Court in<\/p>\n
Patel Harilal Joitaram v. State of Gujarat – 2001 AIR<\/p>\n
SCW 4411.\n<\/p>\n
Crl. Appeal No. 1426\/2003            : 34 :<\/span><\/p>\n
       The words “statement as to any of the circumstances” are                by
\n       themselves capable of expanding the width and contours of the scope
\n       of admissibility.   When the word “circumstances” is linked             to
\n       ‘transaction which resulted in his death, the sub-section casts the net
\n       in a very wide dimension. Anything which has a nexus with his death,
\n       proximate3 or distant, direct or indirect, can also fall within the
\n       purview of the sub-section. As a possibility of getting the maker of the
\n       statements in flesh and blood has been closed once and for all the
\n       endeavour should be how to exclude it       therefrom. Admissibility is
\n       the first step and once it is admitted the court has to consider the
\n       court has to consider how far it is reliable. Once that test of reliability
\n       is found positive the Court has to consider the utility of that statement
\n       in the particular case.\n<\/p>\n
Judged by these standards it cannot be said that the statements<\/p>\n
of PWs 1 to 3 regarding the torments which Jaseera had to put<\/p>\n
up with in her matrimonial home to resist the demand for more<\/p>\n
money do not qualify the test of admissibility as well as<\/p>\n
reliability as has been laid down by the Apex Court in the above<\/p>\n
decision.     I have no hesitation to conclude that the court below<\/p>\n
was justified in holding that Jaseera Beevi who died within two<\/p>\n
months of her marriage was subjected to cruelty or harassment<\/p>\n
by her husband for or in connection with a demand .<\/p>\n
The prosecution has been able to make out the guilt of the<\/p>\n
accused beyond reasonable doubt. The conviction recorded by<\/p>\n
the court below, therefore does not call for any interference.<\/p>\n
Crl. Appeal No. 1426\/2003                : 35 :<\/span><\/p>\n
               24. The sentence imposed on the appellant also<\/p>\n
cannot be said to be excessive having regard to the fact that the<\/p>\n
court below has only imposed the mandatory minimum.                   I,<\/p>\n
therefore, confirm the sentence as well.\n<\/p>\n
       The result of the foregoing discussion is that this appeal<\/p>\n
is without merit and is, accordingly, dismissed confirming the<\/p>\n
conviction entered and                 the sentence passed against the<\/p>\n
appellant.\n<\/p>\n
Dated this the 16th day of October, 2009<\/p>\n
                                                   V.RAMKUMAR, JUDGE<\/p>\n
sj<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Saifudeen vs State Of Kerala on 16 October, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1426 of 2003() 1. SAIFUDEEN, S\/O.MUHAMMED ABDUL KHADER, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE … Respondent For Petitioner :SRI.KRB.KAIMAL (SR.) For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice V.RAMKUMAR Dated […]<\/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-247930","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSaifudeen vs State Of Kerala on 16 October, 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\/saifudeen-vs-state-of-kerala-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Saifudeen vs State Of Kerala on 16 October, 2009 - 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