2024/KER/181

Crl. Appeal No. 3 of 2007 :1:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
CRL.A NO. 3 OF 2007
JUDGMENT SC 581/2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-II,
THIRUVANANTHAPURAM
CP 13/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,ATTINGAL

APPELLANT/ACCUSED NO.1:

SREEKUMAR,S/O. CHELLAPPAN CHETTIAR,

THEKURATHUVILA VEEDU, NEAR MAVENTEMOODU,, AZOOR DESOM,
AZOOR VILLAGE.

BY ADVS.
SRI.K.P.MAJEED
SMT.M.ISHA
SRI.T.H.ABDUL AZEEZ
SRI.P.ANOOP MULAVANA
SRI.M.CHANDRAN

RESPONDENT/COMPLAINANT:

STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.

BY ADV. SRI. PRASANTH M.P., PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2023, THE COURT ON

04.01.2024 DELIVERED THE FOLLOWING:

 2024/KER/181

Crl. Appeal No. 3 of 2007 :2:

‘CR’

JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal No. 3 of 2007
--------------------------------------------------------
Dated this the 4th day of January, 2024.

JUDGMENT

The appellant, who is the first accused in S.C. No. 209 of 2001 of

the Court of Additional District and Sessions Judge, Fast Track (Adhoc-

II), Thiruvananthapuram, filed this appeal challenging the conviction and

sentence imposed on him for the offence punishable under Section 498A

IPC as per the judgment dated 16.11.2006.

2. The appellant/first accused was prosecuted along with his

mother, the second accused, for the offence punishable under Section

304B r/w Section 34 IPC on the allegation that after the marriage of the

first accused with the daughter of PW8 on 21.05.1995 and while the

daughter of PW8 was residing in the matrimonial house along with

accused persons, they subjected her to physical and mental cruelty

demanding more dowry and unable to bear the cruelty, the daughter of

PW8 poured kerosene over her body and set fire to herself at 4.15 p.m.

on 05.12.1998 and thereafter, while undergoing treatment in Medical

College Hospital, Thiruvananthapuram, she succumbed to her injuries at

 2024/KER/181

Crl. Appeal No. 3 of 2007 :3:

6.50 a.m. on 8.12.1998 and the accused are thereby alleged to have

committed the offence as aforesaid

3. Exhibit P1(a) FIR was registered under Section 174 Cr.P.C on

08.12.1998 on the basis of Exhibit P1 First Information Statement of

PW1, who is the brother of the father of the deceased. After completing

the investigation, final report was filed by PW18, Deputy Superintendent

of Police, Attingal, and after committal, the case was taken on file as

S.C. No. 209 of 2001.

4. The trial of the case was conducted before the Court of

Additional District and Sessions Judge, Fast Track (Adhoc-II),

Thiruvananthapuram and from the side of the prosecution PWs 1 to 18

were examined and Exhibits P1 to P9 and MOs 1 to 3 were marked. From

the side of the accused, DW1 was examined and Exhibits D1 and D2

were marked.

5. After considering the oral and documentary evidence on record

and after hearing both sides, the learned Additional Sessions Judge, by

the impugned judgment dated 16.11.2006, convicted the first accused

for the offence under Section 498A IPC and sentenced him to undergo

rigorous imprisonment for three years and to pay fine of Rs.25,000/-

and in default of payment of fine, to undergo simple imprisonment for

six months.
 2024/KER/181

Crl. Appeal No. 3 of 2007 :4:

6. Heard Sri. K. P. Majeed appearing for the appellant and Sri.

Prasanth M.P., the learned Public Prosecutor.

7. The point that requires consideration is whether the conviction

and sentence imposed on the appellant for the offence under Section

498A IPC is legally sustainable.

8. The learned counsel for the appellant argued that the evidence

in this case clearly proves that it is an accidental death which occurred

while the deceased was in the kitchen and when her sari caught fire from

the kerosene stove, while she was boiling milk for her child and that

there is no evidence in this case to indicate the presence of kerosene in

her body and the court below even after arriving at a finding that there

is no evidence of cruelty against the deceased from the side of accused

persons soon before her death so as to attract the offence under Section

304B IPC, recorded a finding that the appellant/first accused committed

the offence under Section 498A IPC.

9. It is also argued that the said finding of the court below was

without framing a charge for the offence under Section 498A IPC and

without satisfactory evidence to arrive at a finding that the

appellant/first accused subjected the deceased to cruelty as defined in

the explanation to Section 498A IPC. But, the learned Public Prosecutor

argued that the evidence of PWs 1, 2 and 8 to 12 will clearly show that
 2024/KER/181

Crl. Appeal No. 3 of 2007 :5:

the appellant/first accused used to manhandle the deceased demanding

money for the construction of the house, and since the prosecution has

proved that the appellant/first accused subjected the deceased to mental

and physical cruelty, there is nothing wrong in convicting him for the

offence under Section 498A IPC, even though he was charged and

acquitted under Section 304B IPC, as cruelty is a common essential to

both the Sections and the difference is that under Section 304B of IPC,

cruelty or harassment soon before death is to be proved and the

occurrence must be within 7 years of the marriage and no such

ingredients are prescribed in Section 498A IPC.

10. The learned counsel for the appellant argued that the

deceased sustained the burn injuries at 4.15 p.m., on 05.12.1998 and

she succumbed to her injuries only at 6.50 a.m. on 08.12.1998 and it is

not in dispute that the victim was fully conscious and able to talk to

others during this period and the prosecution has suppressed the

treatment records of the deceased and has also not examined the doctor

who treated the deceased at Medical College Hospital,

Thiruvananthapuram and there is nothing in evidence to show that the

deceased made any allegations against the accused persons in

connection with the occurrence, and if in fact she was subjected to

cruelty as alleged by the prosecution, she could have mentioned the said

fact to the doctor who treated her or to her relatives and it is a normal
 2024/KER/181

Crl. Appeal No. 3 of 2007 :6:

procedure on the part of the doctor to ascertain the cause of injury from

the patient and the only inference possible from the non production of

the said treatment records is that the prosecution has deliberately

suppressed material evidence.

11. PW1, who is the brother of the father of the deceased,

deposed that the victim died due to burn injuries; but it is not known to

him whether the victim set fire herself. PW1 stated that the accused

used to manhandle the victim by demanding money and the deceased

Beena has told him the same. The evidence of PW1 shows that when he

visited Beena at Medical College Hospital, Thiruvananthapuram, he

asked her about the incident; but, the deceased told him that she will

tell the same later. In cross examination, PW1 admitted that at the time

of giving statement to the police, he was not aware about the cause of

death and that he came to know about the cause of death only later. In

cross examination, PW1 categorically admitted that he told the police

that it is not known to him why Beena committed this act. In another

part of the cross examination, PW1 stated that he sustained an accident

after the incident in this case and therefore, he is suffering from loss of

memory.

12. PW2, stated that the deceased is his distant relative and

about three months before the occurrence, she told him that her
 2024/KER/181

Crl. Appeal No. 3 of 2007 :7:

husband is demanding money for the construction of the house and she

could not collect money from her house and therefore, requested him to

discuss the matter with her husband Sreekumar. In chief examination

itself, PW2 stated that he had not given much importance to the same at

that time and he was under the impression that it was only a small

quarrel between the husband and the wife and he could not meet the

husband of the deceased .

13. PW3 is a witness to Exhibit P2 inquest report. PW4 is the

Village Officer, who prepared Exhibit P3 scene plan. PW5 is the Sub

Divisional Magistrate who prepared Exhibit P2 inquest report.

14. It is not in dispute that the marriage between the first

accused and the deceased was on 21.05.1995, and PW6, Devaswom

Manager, identified his signature in Exhibit P4 marriage certificate.

15. PW7 was the Sub Inspector of Chirayinkeezhu Police Station

who recorded Exhibit P1 First Information Statement on 08.12.1998 and

registered Exhibit P1(a) FIR. His evidence further shows that he

recovered MO2 stove and MO3 remanence of the sari and skirt worn by

the deceased at the time of occurrence as per Exhibit P5 scene mahazar.

According to PW7, he produced MOs 2 and 3 before the court as per

Exhibit P6 property list. The evidence of PW7 in cross examination shows

that at the time when he prepared Exhibit P5 scene mahazar, he was not
 2024/KER/181

Crl. Appeal No. 3 of 2007 :8:

sure whether the deceased committed suicide. PW7 further admitted

that it was the first accused who pointed out the place of occurrence.

The evidence of PW7 further shows that the appellant herein was not

arrayed as an accused at the time of preparing Exhibit P5 scene mahazar

and therefore, PW7 has not arrested the accused.

16. It is true that PW8, the mother of the deceased, has deposed

that the first accused used to beat and hit her daughter by demanding

money and when her daughter came there for casting her vote in

Parliament election, she told her that the accused inflicted burn injuries

on her face with a cigarette and he pressed on her neck and according to

PW8, she used to give money to her daughter; but the evidence of PW8

in cross examination would show that there are other issues between the

families.

17. According to PW8, when the milk boiling ceremony of the new

house of the accused was conducted, her daughter was not allowed to

enter the new house with lighted lamp and when she was about to

question the accused about the same, her daughter prevented her and

thereafter, she returned without eating food from there. PW8, would say

that when she asked her daughter about the cause of the incident while

her daughter was undergoing treatment in the hospital, her daughter

 2024/KER/181

Crl. Appeal No. 3 of 2007 :9:

after looking towards her husband and relatives, told her that she will

tell the same later.

18. PW8 also deposed before the court that the accused and his

mother told her daughter that they will not allow her daughter to live in

the new house even for 10 days. But it is pertinent to note that PW8 has

not mentioned when her daughter told the same to her. It is also

pertinent to note that PW8 has added that the neighbours also told her

about the same, when she reached there for the milk boiling ceremony.

19. The evidence of PW8 in cross examination shows that she was

questioned by the police on 9th; but she admitted that she has not told

the police about giving money to her daughter and she would say that

the accused started quarreling with her daughter after the

commencement of the construction of the house. PW8 categorically

admitted in cross examination that her daughter was fully conscious till

her death and she has not told the police that her daughter signalled

about the presence of the accused and his relatives when she asked

about the cause of the incident. PW8 further admitted that they were not

in good terms as it was the mother of the accused who entered the new

house with lighted lamp on the occasion of the milk boiling ceremony.

When the learned counsel for the defence suggested that the accused

attempted to rescue his wife by covering her with his lungi, PW8 only
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 10 :

stated that she did not see the same and to the suggestion that the

accused also sustained burn injuries in the incident, the witness

answered that she has not witnessed the same.

20. PW9 is a neighbour of PW8 and according to her, one month

before the incident, when she saw the deceased, she told her that her

husband used to harass her by demanding money for the construction of

the house and that her husband will beat her, if she fails to bring the

money. In cross examination, PW9 admitted that the deceased is the

daughter of the younger brother of her husband. PW9 cannot say the

date or time when the deceased told her about the alleged harassment

by the accused.

21. PW9 further admitted that she is not aware as to how the

deceased sustained burn injuries. According to PW9, even though she

asked the victim regarding the cause, the victim only cried and she did

not respond to her question. PW10 deposed that she is residing near to

the family house of the deceased and two weeks prior to the occurrence,

when she met her in the bus stop, the deceased told her that her

husband used to harass her for money in connection with the

construction of the house and that she came there to collect money from

her mother.
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 11 :

22. The evidence of PW10 in cross examination shows that she

cannot remember whether she has given such a statement to the police

and further her evidence only shows that the deceased has only shared

her apprehension that the accused will assault her, if in case she fails to

produce money for the construction of the house.

23. PW11 turned hostile to the prosecution and her evidence in

chief examination shows that she is not aware about the actual cause of

the death. But, in cross examination, she would say that she heard

people saying while taking the victim to the hospital that her sari caught

fire while boiling milk for the child. PW12 deposed that the deceased is

the daughter of the younger sister of her mother and that the husband

of the deceased used to beat the deceased demanding money.

24. But, the evidence of PW12 in cross examination would show

that it was the mother of the deceased who told her about the

harassment. In cross examination, PW12 denied that she told the police

that it was Biju, the brother of the deceased who informed her through

phone about the death of the deceased and the relevant portion of her

statement to the police is marked as Exhibit D1. PW12 also denied that

she told the police that on 05.12.1998, at 5.30 p.m., she was informed

through phone that her sister Beena is undergoing treatment in Medical

 2024/KER/181

Crl. Appeal No. 3 of 2007 : 12 :

College Hospital, Thiruvananthapuram for burn injuries and the said

portion in her statement to the police is marked as Exhibit D2.

25. In cross examination, PW12 also categorically admitted that

during night, there is no entry for men to the female ward and during

night, her mother and the mother of Beena were there in the hospital. In

another part of the cross examination, she stated that the mother of

Beena told her that the husband of Beena is subjecting Beena to cruelty

and that the mother of Beena used to tell her the same whenever they

meet.

26. PW13 is a neighbour who reached the place of occurrence on

hearing the cries and according to him, Beena was standing there with

burn injuries and they covered her with a lungi and took her to the

hospital . He denied that he told the police that the accused used to

manhandle his wife and he was declared hostile to the prosecution.

However, he stated that there used to be small quarrels between the

accused and his wife and for the last 20 years, he is their neighbour.

27. PW14 is the doctor who conducted the postmortem and according

to PW14, the death was due to burns involving 92% of body surface and

the witness cannot remember whether he was questioned by the

Investigating Officer. In cross examination, PW14 admitted that the

possibility of the clothes catching fire cannot be ruled out and according
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 13 :

to him, it is not possible to differentiate the burn sustained accidentally

by clothe catching fire from the burns that have been facilitated by

inflammable substances, especially when there is a lapse of time. He

further admitted that if there was more than one layer of cloth, that

itself can accelerate severity of burn. The evidence of PW14 clearly

shows that he conducted the postmortem examination 3 days after the

occurrence and in that circumstances, it was not possible to find out the

presence of any inflammable substance in the body.

28. PW18 is the Dy.S.P who completed the investigation and filed

the final report. In cross examination, he would say that he questioned

the doctor who treated the deceased and also perused the case sheet.

But, according to him, he has not recorded the statement of the doctor.

PW18 admitted in cross examination that it was revealed in his

investigation that the deceased was conscious till her death. PW18

deposed that the deceased has told the doctor about the cause of injury.

But, PW18 would say that the doctor has not prepared any wound

certificate.

29. In another part of the cross examination, when it is suggested

to PW18 that the deceased has told the doctor that her dress

accidentally caught fire and it was in that circumstance the doctor has

not given any intimation to the police, the witness answered that it is not
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 14 :

known to him whether the deceased has mentioned anything to the

doctor. However, PW18 denied the suggestion that he deliberately

suppressed the treatment records of the deceased to suppress the fact

that the victim sustained burn injuries when her dress accidentally

caught fire.

30. At the time of 313 questioning, the first accused stated that he

never subjected his wife to cruelty or harassment and never demanded

any money and at the time of occurrence, his wife was dressed for

attending a marriage and while he was ironing his dress, his wife went to

the kitchen for boiling the milk and thereafter, he heard her cries and

reached the kitchen. He would say that when he attempted to save his

wife, he also sustained burn injuries and that she was taken to hospital

after covering her with his lungi and his wife told the relatives and the

doctor that her sari caught fire from the stove and after the death of his

wife, he availed treatment for the burn injuries on his hand from the

Government Hospital Valiyakunnu. The accused further stated that after

5 days, the brother of his wife along with another relative came to his

house and demanded to transfer the ownership of the house to the

name of his son and he has not agreed for the same.

31. The brother of the accused is examined as DW1 and according

to him, he was also present in the house at the time of occurrence and
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 15 :

that he went there to attend a marriage in a nearby house. He deposed

that while he was talking to his brother Sreekumar and wife Beena, the

deceased Beena went to the kitchen for boiling the milk and

subsequently they heard her cries from the kitchen and when they

reached the kitchen, they saw the sari of Beena burning in fire and when

his brother Sreekumar attempted to extinguish the fire with his hands,

he also sustained injuries and thereafter they covered Beena with a lungi

and took her to a hospital at Chirayinkeezhu and thereafter to the

Medical College Hospital.

32. According to DW1, the victim told him that her sari caught fire

from the hearth. In cross examination, DW1 stated that there was a

stove and hearth in the kitchen and he is not sure whether the sari

caught fire from the stove or hearth.

33. As noticed earlier, there is no satisfactory explanation from

the side of the prosecution for not producing the treatment records of

the victim and not examining the doctor who treated the victim in the

hospital. Admittedly, the victim was fully conscious for the 3 days while

she was undergoing treatment in the Medical College Hospital and as per

the usual procedure, the injured could have stated the cause of injury to

the doctors who examined her in the hospital.

 2024/KER/181

Crl. Appeal No. 3 of 2007 : 16 :

34. It is pertinent to note that the last incident of cruelty allegedly

occurred before the housewarming ceremony of the accused. But, the

evidence of PW8 clearly shows that at the time of the house warming

ceremony, she returned from there without eating food, for the reason

that it was the mother of the accused who entered the new house with

the lighted lamp The evidence of PW8 further shows that when PW8

attempted to question the accused in this connection, it was the

deceased who prevented her and therefore, it is clear that there are

other issues between the family of PW8 and the accused.

35. In order to prove the offence under Section 498A IPC, the

prosecution has to establish the consequences of cruelty which are likely

to cause a woman to commit suicide or to cause grave injury or danger.

Section 498A IPC reads as follows:

“498A. Husband or relative of husband of a woman subjecting her to

cruelty.—
Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be
liable to fine.
Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to

coercing her or any person related to her to meet any unlawful demand
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 17 :

for any property or valuable security or is on account of failure by her or

any person related to her to meet such demand.]”

36. It is well settled that every type of harassment or cruelty

would not attract the offence under Section 498A IPC and to attract

the offence under Section 498A IPC, it must be established that

cruelty or harassment to wife was to force her to cause grave bodily

injury to herself or to commit suicide, or that the harassment was to

compel her to fulfil illegal demand for dowry. There is no evidence in

this case to show that the deceased has made any complaint against

the accused prior to her death regarding the ill treatment or

manhandling before any of the authorities and if in fact, she had

suffered manhandling either physical or mental, definitely she would

have given a proper complaint before the concerned authorities.

37. In this case, there is no satisfactory evidence for any cruelty

or harassment to the deceased as a consequence of her failure to

meet any demand for dowry and the evidence from the side of the

prosecution that the deceased feared or apprehended that her

husband will beat her if in case she fails to bring money for the

construction of the house, is not sufficient to constitute the ingredients

of cruelty or harassment contemplated under Section 498A IPC, as it

is well settled that minor quarrels between the spouses in the ordinary
 2024/KER/181

Crl. Appeal No. 3 of 2007 : 18 :

life because of difference of opinion or mere sporadic incidents of ill

treatment are not sufficient to establish the offence under Section

498A of IPC.

38. On a careful reappreciation of the entire evidence on record,

it is found that the prosecution has suppressed material evidence

regarding the treatment of the deceased in the hospital and it is clear

from the facts and circumstances that the deceased sustained burn

injuries when her sari accidentally caught fire, while she was boiling

milk in the kitchen after dressing for attending a marriage function

and in view of the hostility between the accused and family members

of PW8, for permitting the mother of the accused to enter the new

house with the lighted lamp and in the absence of satisfactory

evidence regarding cruelty or harassment, the accused is entitled for

the benefit of reasonable doubt. The point is answered accordingly.

Therefore, the impugned judgment requires to be interfered with and I

do so.

39. In the result, this appeal is allowed. The conviction and

the sentence passed by the trial court against the accused for the

offence punishable under Section 498A IPC as per the impugned

judgment is set aside and the accused is acquitted under Section

 2024/KER/181

Crl. Appeal No. 3 of 2007 : 19 :

235(1) Cr.P.C. His bail bond is cancelled and he is set at liberty

forthwith.

Interlocutory applications, if any pending, shall stand closed.

sd/-
JOHNSON JOHN,
JUDGE.
Rv

Powered by TCPDF (www.tcpdf.org)