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2015 DIGILAW 1701 (KER)

Aravindakshan Pillai v. State of Kerala

2015-12-18

K.P.JYOTHINDRANATH

body2015
ORDER : K.P. Jyothindranath, J. 1. This Criminal Revision Petition is filed against the concurrent findings in C.C. No. 77/1999 on the file of the Judicial First Class Magistrate Court, Ranny and Criminal Appeal No. 88/2002 dated 22.12.2005 on the file of the Additional Sessions Judge, Pathanamthitta. Revision petitioner is the sole accused in crime No. 97/1998 of Vechoochira Police Station. The offence alleged is under S. 498A of I.P.C. The Trial Court after taking cognizance of the said offence examined 11 witnesses and also marked 10 documents. One witness was examined on the side of defence. 2. The Trial Court after appreciating the materials, convicted the accused under S. 498A of I.P.C. and sentenced to undergo rigorous imprisonment for three years and to pay a fine of` 5,000/- with a default sentence of simple imprisonment for six months. Against the above conviction and sentence, the revision petitioner herein preferred an appeal before the Sessions Court. After hearing the parties, Appellate Court upheld the conviction and modified and reduced the substantive sentence to rigorous imprisonment for one year. Aggrieved by the above concurrent findings of guilty and the sentence now imposed by the Sessions Court, this Revision Petition is filed. 3. As a Revisional Court, the jurisdiction of this court is extremely narrow. This Court can interfere with the findings of the trial court and the Appellate Court only when there is illegality, perversity or caused miscarriage of justice. If the perusal of records reveals that it is a matter where revisional powers are to be used, it can be seen that the power is very wide. If the conclusions of the court below are based on inferences not drawn on established facts and legally legitimate materials, the finding is liable to be set aside. Keeping in mind the permissible parameters provided in a revisional matter, the findings and conclusions arrived at by the courts below are scrutinised. 4. Shorn of unnecessary details, facts are as follows: "The wife of the revision petitioner committed suicide by consuming acid on 23.10.1998 at 8 a.m. The marriage between the deceased and the revision petitioner herein was on 20.4.1978 at Lucknow. The allegation is that the petitioner herein was having the habit of consuming liquor with his friends and it was opposed by the wife and there was constant quarrel and in consequence, she consumed acid and committed suicide. The allegation is that the petitioner herein was having the habit of consuming liquor with his friends and it was opposed by the wife and there was constant quarrel and in consequence, she consumed acid and committed suicide. The elder daughter of the deceased deposed before the court supporting the prosecution whereas the younger son was examined as DW1 by the defence." 5. In this case, the marriage was on 20.04.1978 and the deceased committed suicide on 23.10.1998. The court charge is that the deceased was not approving the habit of the appellant inviting friends and having liquor party and due to that reason, he mentally and physically harassed the deceased and thereon the deceased committed suicide on 23.10.1998. There is no specific instances of cruelty highlighted in the court charge. 6. The F.I.R. was registered for unnatural death. The brother of the deceased was the informant. As per the F.I. Statement, Sindhu, his nephew, telephoned and informed him that her mom consumed acid. As he reached therein, he found Aravindakshan (revision petitioner); Sindhu and a neighbour, taking the deceased in a jeep and they went to the hospital. She was admitted and treated in the Medical College Hospital, Kottayam. The Doctor declared the death at 8 a.m. According to him, for the last few days, the deceased was mentally harassed by her husband and it is also stated that she consumed acid kept for preparing rubber sheets. Death occurred at 8 a.m. on 23.10.1998. The First Information Report was prepared on 23.10.1998 at 4 p.m. The inquest conducted on 24.10.1998 at 8.30 a.m. Ext. P4 is the postmortem certificate and the opinion of cause of death is shown as death due to poisoning. It was not a normal death, but death due to consuming acid and it was a suicide. The suicide occurred after about 20 years of marriage. 7. The question before this court is that whether the said death was due to cruelty or harassment meted out by the revision petitioner herein. Surely, the passage of time after marriage warrants a very cautious appreciation of evidence. The question before this revisional court is whether such an appreciation is made or if not, whether it resulted into miscarriage of justice. 8. The main witness in this case is PW2. She is none other than the daughter of the revision petitioner as well as the deceased. The question before this revisional court is whether such an appreciation is made or if not, whether it resulted into miscarriage of justice. 8. The main witness in this case is PW2. She is none other than the daughter of the revision petitioner as well as the deceased. Her case is that her father used to consume alcohol and ganja and further, her case is that thereafter accused used to come and harass her mother. The evidence is as follows: “XX XX XX” 9. No specific allegation of any specific incident, but only an evidence regarding the habit of her father consuming alcohol and using ganja. There is also a general allegation of harassment. Thereafter to a leading question “XX XX XX” she answered by stating that she got admission to plus two and when asked for money to purchase books, the accused ousted both of them to get money from the house of the mother and further stated that thereon they went to the mother's house. No date or no details provided. But during cross examination, she admitted that she was staying in her grandmother's house and she was under the protection of her uncle and not staying with the parents. Her evidence in this regard is “XXXXX” Lucknow “XXXXX”. It is seen that witness is recalled and thereafter the attested copy of her S. S.L.C. book is marked as Ext. P5. Thereafter she deposed that in Ext. P5 the name of accused is shown as her father. Then she marked a letter as Ext. P6 claiming to be written by her mother. She identified the writing as that of her mother. 10. PW3 is the mahazar witness. PW4 is the uncle of PW1, who is the brother of the deceased and his case is that after the marriage, the deceased had sent letters highlighting the harassment. No such letter produced before the court. 11. PW5 is the father of the deceased. According to him, when the prosecution made a specific question “XXX” he answered “XXX” and when the question repeated “XXX” he answered “XXX”. 12. PW6 is the sister-in-law of the deceased. According to her, she had seen an incident where the accused beat the deceased. But it was brought as an omission and her CD portion is brought to her notice, in which it was admitted that “XXX” acid “XXX”. 13. 12. PW6 is the sister-in-law of the deceased. According to her, she had seen an incident where the accused beat the deceased. But it was brought as an omission and her CD portion is brought to her notice, in which it was admitted that “XXX” acid “XXX”. 13. Thus, in this case it can be seen that the appellant was a drunkard. It was the main reason for committing the suicide. What was the immediate cause especially when marriage took place about 20 years back? Whether any specific acts of cruelty can be attributed to the accused for commission of suicide of the deceased. This cannot be a case where a course of conduct can be attributed as cause of death. 14. Originally, the prosecution has not put forward any such case. It can be seen that a letter is marked by recalling PW2. That letter is not relied on by the appellate court. The question is that of admissibility of such a document. I perused the records which revealed that the document in question was produced by the Prosecutor. 15. This is a case charge sheeted by the police. During investigation such a document is not seen seized by Police. Prosecutor got no case that the document produced was in-the case diary and omitted to produce, along with the final report. Surely, if the Prosecutor came to know that such a document is therein, he can file a petition under S. 311 of Cr.P.C. to recall the witness to produce the document and give evidence. In that case, the defence will be getting an opportunity to be heard and only when it is found that for a just decision, the document is needed, the prayer will be allowed by the court. The Prosecutor can also pray to the court to invoke S. 91 of Cr.P.C. It may also be possible to conduct further investigation by the Police. But without invoking any of these provisions, the Prosecutor cannot directly produce document in the court. When a document is produced by the Prosecutor as a surprise, it will prejudice the accused. A Prosecutor has widen set of duties. It is not only to ensure that the accused is punished, but of ensuring fair play in the proceeding. All the relevant materials can be brought before the court, but it should be as per law. When a document is produced by the Prosecutor as a surprise, it will prejudice the accused. A Prosecutor has widen set of duties. It is not only to ensure that the accused is punished, but of ensuring fair play in the proceeding. All the relevant materials can be brought before the court, but it should be as per law. On a fine morning, he cannot produce before the court a document collected by him from a witness. He cannot take the role of an Investigator. At the very same time, he can help the court by filing appropriate petition to bring the document before the court. 16. I perused the questioning under S. 313 of Cr.P.C. of the accused. Revision petitioner's specific case is that deceased had undergone a vasectomy operation without his knowledge which was a failure. He came to know about it only later. The brother of the deceased also admitted the fact that the deceased had undergone an operation. The postmortem certificate also shows that there was a stitched wound at the abdominal area. The prosecution case is that accused was a drunkard. But husband being a drunkard alone cannot be treated as a criminal cruelty to convict a person for an offence under S. 498A, only because wife committed suicide after 20 years of marriage. There is no evidence that his habit of consuming alcohol is a willful conduct so as to drive the deceased to commit suicide, but prosecution case is that the said course of conduct is the reason for estrange. There is no evidence to show that when he became a drunkard. It may be a "cruelty" for the purpose of divorce or any other matrimonial dispute. But it cannot be termed as an offence inviting penal punishment as long as it is not willful, even if wife committed suicide. If that is so, it can be only said that here is a case where miscarriage of justice took place. Hence, the conviction and sentence passed by both the Trial Court and the Appellate Court have to be set aside. The Revision Petition is allowed. The conviction and sentence passed by the Trial Court and the Appellate Court are hereby set aside.