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2025 DIGILAW 1452 (KER)

Haridas, S/o. Velayudhan v. State of Kerala

2025-05-26

GOPINATH P.

body2025
JUDGMENT : This appeal has been filed challenging the conviction and sentence imposed on the appellant in S.C.No.380/2013 on the file of the Additional District and Sessions Judge (for the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam. S.C.No.380/2013 arises out of Crime No.1166/2012 of Udayamperoor Police Station alleging commission of offence under Sections 498A , 308 and 324 of the Indian Penal Code . 2. The prosecution case is that the appellant married PW1-Latha on 29.3.1993 as per customary rites and ceremonies. Two daughters were born to the appellant and PW1. It is alleged that on 24.9.2012, at about 10 p.m., the appellant entered into a fight with PW1 and banged PW1's head on the wall of the bed room of the house in which they were residing and assaulted her by beating her with his hand and by kicking her and when Pws 2 and 5 attempted to intervene, the appellant/accused assaulted them brought two bottles of kerosene from the kitchen and poured the kerosene over the Pws 1, 2 and 5 and attempted to set fire them and thereby he committed the offence alleged against him. 3. Sri. M. Dinesh appears for the appellant pro bono on the basis of a request from the Kerala State Legal Services Authority. He contends, primarily, that the appellant could not have been convicted for the offence under Section 498A of the Indian Penal Code (hereinafter referred to as the IPC ). It is submitted that to constitute an offence under Section 498A of the IPC , the cruelty that is meted out by the husband or relative of husband of a woman must be of such a kind that it is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of a woman where harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of any failure by her or any person related to her to meet such demand. It is submitted that, in the facts of the present case, the appellant and PW1 had been residing together as husband and wife from 29.3.1993 till the date of the incident on 24.9.2012 and none of the witnesses have spoken of any earlier incident which would amount to an offence under Section 498A of the IPC . It is submitted that normal marital discord between a husband and wife does not fall within the scope of 498A of the IPC . The learned counsel for the appellant placed reliance on the judgment of this Court in Rosamma Kurian v. State of Kerala ; 2014 (2) KHC 64 in support of this contention. It is submitted that, at best, the evidence in the case would be sufficient to establish a case of commission of offence under Section 323 of IPC . It is submitted that the appellant was in custody at the crime stage from 26.9.2012 to 23.10.2012. It is submitted that, though there was a charge under Section 324 of IPC , the trial Court did not convict the appellant of the offence under Section 324 of the IPC and only convicted the appellant under Section 323 of IPC . 4. The learned Public Prosecutor submits that the evidence of the prosecution witnesses and especially the evidence of PWs1, 2 and 5 would indicate that the appellant had committed the offences alleged against him. It is submitted that the mere fact that the appellant and PW1 had lived together as husband and wife from 29.3.1993 till the date of the incident on 24.9.2012 is no reason to conclude that the appellant was not guilty of the offence under Section 498A of the IPC . It is submitted that when the wife (PW1) has been subjected to extreme cruelty as in this case and when the appellant had also attempted to douse PW1 and children with kerosene and set fire to them, the appellant had clearly committed the offence as contemplated by explanation (a) to Section 498A of the IPC . It is submitted that the trial Court had therefore rightly convicted the appellant under Section 498A of the IPC . It is submitted that the trial Court had therefore rightly convicted the appellant under Section 498A of the IPC . Coming to the offence under Section 323 of the IPC , it is the submission of the learned Public Prosecutor that the evidence of the prosecution witnesses including the doctor who treated PW1 immediately after the incident indicate beyond doubt that the appellant had committed the offence under Section 323 of the IPC . Thus, it is submitted that the appeal deserves to be dismissed. 5. Having heard the learned counsel appearing for the appellant and the learned Public Prosecutor, I am of the opinion that the learned counsel for the appellant is right in contending that the appellant could not have been convicted for the offence under Section 498A of the IPC . Section 498A of the Indian Penal Code reads thus:- “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 willful 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 for any property or valuable security or is on account of failure by her or any person related to her meet such demand.” A perusal of Explanation (a) to Section 498A indicates that in order for an offence under Section 498A to be committed the cruelty that is meted out to the wife must be of such a kind that is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical). In the facts of the present case, though PW1 had tendered evidence to suggest that there have been earlier demands for dowry, it cannot be forgotten that the appellant and PW1 had lived together as husband and wife for the period from 29.3.1993 till 24.9.2012 and there is no record of any earlier complaint having been filed against the appellant by PW1 or any one else regarding any cruelty being meted out to PW1. While it is true that the evidence of PW1 is consistent with the testimony of PWs 2 and 5 who are also eye witnesses to the incident, the evidence of PWs 1, 2 and 5 put together does not lead me to conclude that the offence under Section 498A of the IPC had been committed by the appellant. In Rosamma Kurian (supra) , this Court took the view that normal marital discord in the matrimonial home cannot amount to an offence under Section 498A of the IPC . Therefore, I find that the appellant could not have been convicted for the offence under Section 498A of the IPC . 6. Coming to the conviction for the offence under Section 323 of the IPC , I am of the view that there is sufficient material to conclude that the appellant had committed the offence punishable under Section 323 of the IPC . As already noticed, the evidence of PWs 1, 2 and 5 are consistent. On 24.9.2012, the appellant had assaulted PW1 and when PWs 2 and 5 had attempted to intervene, he had brought two bottles of kerosene from the kitchen of the house in which they were residing and had poured the kerosene over PWs 1, 2 and 5 and had also attempted to set them on fire. PW6 who was working as Junior Consultant, Taluk Head Quarters Hospital, Thripunithura has deposed that there was a swelling on the left occipital area of the scalp of PW1 and there was tenderness over the lumbosacral area and there was also the smell of kerosene when PW1 was brought to the Taluk Hospital at about 12.55 a.m, on 25.9.2012. Exts.P4 and P5 certificates issued by PW6 also indicate injuries on PWs 2 and 5. The trial Court has correctly noticed that the evidence of PW6 corroborates with the evidence of PWs 1 2 and 5. Exts.P4 and P5 certificates issued by PW6 also indicate injuries on PWs 2 and 5. The trial Court has correctly noticed that the evidence of PW6 corroborates with the evidence of PWs 1 2 and 5. Therefore, I find no reason to overturn the conviction of the appellant under Section 323 of the IPC . In the result, the appeal is allowed in part. The conviction and sentence imposed on the appellant for the offence under Section 498A of the IPC will stand set aside and the appellant is acquitted of the offence under Section 498A of the IPC . The conviction of the appellant for the offence under Section 323 of the IPC is upheld. However, in the totality of the peculiar facts and circumstances of the case, the sentence of imprisonment for the offence under Section 323 of the IPC is modified to the period of incarceration already undergone between 26.9.2012 and 23.10.2012. The amount of Rs.10,000/- (Rupees ten thousand only) deposited by the appellant pursuant to the order dated 16.1.2015 in Crl.M.A.No.253/2015 shall be refunded to the appellant after realising the fine of Rs.1,000/- (Rupees one thousand only) for the offence under Section 323 of the IPC . This Court places on record its appreciation for the efforts taken by the learned counsel for the appellant (appearing pro bono).