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2025 DIGILAW 1631 (KER)

Stephen S/o. Jacob v. State Of Kerala

2025-06-10

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. This criminal appeal is at the instance of the accused in S.C.No.448/2003 on the files of the Additional Sessions Court, Thodupuzha, and the accused impugns conviction and sentence imposed against him in the said case as per judgment dated 11.09.2006. Respondent is the State of Kerala, represented by the learned Public Prosecutor. 2. Heard the Adv.Lakshmi C.V., the learned Amicus Curiae and the learned Public Prosecutor in detail. Perused the trial court records and the evidence in detail. 3. The genesis of the case, as could be gathered from Ext.P3 First Information Statement and Ext.P4 First Information Report in crime No.159/2002 of Vandiperiyar Police Station, is that one xxxx (original name not disclosed) attempted to commit suicide at 5.45 pm on 25.09.2002 inside the bathroom in her layam in AVT Estate, Hillash Division by pouring kerosene on her body and setting herself on fire. Thereafter, she was taken to the hospital and while undergoing treatment, she died in consequence of the burn injuries sustained. The prosecution allegation is that, the reason for the suicide of xxxx is pursuant to the occurrence at 11.30 am on 25.09.2002. In the FI Statement marked as Ext.P3, xxxx herself stated that at about 11.30 am on 25.09.2002, the accused, Stephen, S/o.Jacob, reached her layam in the absence of her parents therein, since they went for work in the estate. Then Stephen demanded xxxx to go with him along with the gold ornaments she had, but she refused the said demand. He then stated that he would go outside and say that he had laid along with her. Later, Stephen caught hold of her chain and went inside a room after locking the same. Later, Stephen pushed xxxx on a cot and tore her ‘nighty’. When she raised a hue and cry, he covered her mouth and restrained her from crying. Soon she beat him by using an iron pipe on his leg. When she went outside, Stephen escaped through the upper side wall. According to the prosecution, Stephen used to follow and harass xxxx, while she was studying in 10 th standard, because of his nuisance and harassment, she dropped her studies and this occurrence was thereafter. On this premise, the prosecution alleges commission of offences punishable under Sections 452, 354 and 306 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by the accused. 4. On this premise, the prosecution alleges commission of offences punishable under Sections 452, 354 and 306 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) by the accused. 4. On committal of the matter before the Sessions Court, Thodupuzha, it was made over to the Additional Sessions Court, Thodupuzha, for trial and disposal. The trial court, after framing charge for the said offences, tried the matter. 5. During trial, PW1 to PW6 were examined and Exts.P1 to P8 were marked on the side of the prosecution. After completion of the prosecution evidence, even though the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1) (b) of the Code of Criminal Procedure, he did not adduce any evidence. CW1 was examined as court witness at the volition of the Court. Thereafter, on hearing both sides and on analysing the evidence, the trial court found that Ext.P3, the statement of the victim recorded by the police, is nothing but a dying declaration. Thus on analysis of Ext.P3, coupled with evidence of PW1 and PW2 and other materials, the trial court found that the accused committed offences punishable under Sections 452, 354 and 306 of IPC. As a sequel thereof, the accused was sentenced to undergo R.I. for 5 years and to pay fine of Rs.10,000/- in default, to undergo R.I for 3 months under Section 452 of IPC and to undergo R.I. for 1 year u/s.354 of IPC and undergo R.I for 7 years and to pay fine of Rs.25,000/- in default, to undergo R.I for 6 months u/s.306 of IPC. The substantive sentence ordered to be run concurrently. PW1 was held entitled to get a sum of Rs.25,000/- as compensation under Section 357 of Cr.P.C. if the fine amount was paid by the accused. Set off also was allowed. 6. Since the appeal is from the year 2007 and neither the accused nor the appellant has shown interest in arguing the matter, this Court appointed Advocate Lakshmi C.V. as Amicus Curiae in this matter. 7. It is pointed out by the learned Amicus Curiae that in this matter, the evidence available in the context of the fact that the accused and the victim are residents of nearby ‘layams’, offence under Section 452 of IPC will not attract. 7. It is pointed out by the learned Amicus Curiae that in this matter, the evidence available in the context of the fact that the accused and the victim are residents of nearby ‘layams’, offence under Section 452 of IPC will not attract. According to the learned Amicus Curiae, in this case, excluding Ext.P3, the evidence of PW1 and PW2 relied on by the trial court as that of the victim’s parent and relative is hearsay and therefore, none of the offences as against the accused are proved by the prosecution with the aid of admissible evidence. In such view of the matter, the impugned verdict would require interference and as sequel thereof the accused deserves acquittal. 8. While supporting the conviction and sentence, the learned Public Prosecutor would submit that in this matter, the victim was followed and harassed by the accused while she was going to school and in consequence thereof, she dropped her studies. While so, on the date of occurrence, the accused trespassed upon the house and outraged her modesty. Since she could not tolerate the overt acts of the accused, on the same day evening she attempted to commit suicide and later she died of the burn injuries caused in consequence of the said attempt. Therefore, all the offences are proved beyond reasonable doubt, as found by the trial court, and no interference is called for in the verdict impugned. 9. Addressing the rival submissions, the points arise for consideration are; 1. Whether the trial court wrongly found that the accused committed offence under Section 452 of IPC? 2. Whether the trial court wrongly found that the accused committed offence under Section 354 of IPC? 3. Whether the trial court wrongly found that the accused committed offence under Section 306 of IPC? 4. Whether the trial court verdict requires interference? 5. Order to be passed? 10. On perusal of Ext.P3 First Information Statement, which was given the status of ‘dying declaration’ by the trial court, it has been stated that at about 11.30 am on 25.09.2002, the accused, Stephen, S/o.Jacob, reached her layam in the absence of her parents therein, since they went for work in the estate. Then Stephen demanded xxxx to go with him along with the gold ornaments she had, but she refused the said demand. Then Stephen demanded xxxx to go with him along with the gold ornaments she had, but she refused the said demand. He then stated that he would go outside and say that he had laid along with her. Later, Stephen caught hold of her chain and went inside a room after locking the same. Thereafter, Stephen pushed xxxx on a cot and tore her ‘nighty’. When she raised hue and cry, he covered her mouth and restrained her from crying. Soon she beat him by using an iron pipe on his leg. When she went outside, Stephen escaped through the upper side wall. According to the prosecution, Stephen used to follow and harass xxxx, while she was studying in 10 th standard, because of his nuisance, she dropped her studies and this occurrence was thereafter. 11. Apart from Ext.P3 statement, PW1, who is none other than the mother of the victim, was examined. According to her, her daughter attempted to commit suicide on 25.09.2002 while her husband and son had gone for job. It is further deposed by PW1 that the accused, who was at the dock, used to utter abusive words against the victim and in consequence thereof, her studies were discontinued. She further stated that the accused used to harass the victim while she was going to school and accordingly, she discontinued her studies in the 10 th standard, despite having the intention to pursue further education. On the date of occurrence, PW1 left the layam at 7.30 am and returned at 5.30 pm. On her arrival, she found that the daughter was crying and when it was enquired, the daughter stated that the accused trespassed upon the house, tore her ‘nighty’ and covered her mouth; and thereby outraged her modesty and later he escaped by jumping the upper side wall. In consequence of this occurrence, the victim committed suicide. Though PW1 was cross-examined with the suggestion that she committed suicide because of fixation of her marriage with another man, the said suggestion was denied by PW1. Nothing extracted to disbelieve the version of PW1 who had given evidence before the trial court as recorded, in cross-examination. 12. In support of the evidence of PW1, PW2, the father’s sister of the victim, also was examined and she also supported the version of PW1. Nothing extracted to disbelieve the version of PW1 who had given evidence before the trial court as recorded, in cross-examination. 12. In support of the evidence of PW1, PW2, the father’s sister of the victim, also was examined and she also supported the version of PW1. PW6 examined in this case is the Sub Inspector of Police, Vandiperiyar, at the time of occurrence and he deposed that he recorded Ext.P3 statement of the victim and based on the same, he registered Ext.P4 FIR alleging commission of offences punishable under Sections 452 and 354 of IPC. Thereafter, the victim died on 27.10.2002 and accordingly, offence under Section 306 of IPC was incorporated. According to him, he had given Ext.P7, the correct address of the accused before the magistrate court. During cross-examination of PW6, nothing was asked to shake the veracity of the version of PW6, who recorded Ext.P3, rather than merely suggesting that the case was registered and investigated falsely without any basis. It was through PW3, Ext.P1 postmortem report was marked and as per the postmortem report, it was opined by the doctor that the death was due to burns and the percentage of burn is 60%. PW4 is the Assistant Sub Inspector of Police, Vandiperiyar police station, during the period of occurrence and Ext.P2 inquest report was prepared by him. In the inquest report, point No.7 pertaining to doubtful culprit, the name of the accused was recorded. 13. It is argued by the learned Amicus Curiae that offence under Section 452 of IPC would not attract in this case since the accused and victim are residents of nearby layam having access each other. Section 442 of IPC defines house trespass and the same reads as follows: “442. House-trespass.- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house-trespass”. Section 441 of IPC defines criminal trespass and the same reads as follows: “ 441. Criminal trespass. Section 441 of IPC defines criminal trespass and the same reads as follows: “ 441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. 14. So, doing an act by entering into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or remaining in any building, tent or vessel used as a human dwelling or any building used as a place of worship, after criminally trespassing upon the same is said to commit the offence of house trespass. In the instant case, even though the accused and the victim are nearby residents of separate ‘layams’, the evidence given by PW1 and PW2 would show that the accused used to abuse and harass the victim continuously and in consequence thereof, her studies were dropped at 10 th class, though she had intention to study further. Further, it was deposed by PW1 that the father of the victim restrained the accused from obstructing his daughter. If so, it could not be held that offence under Section 452 of IPC would not attract in this case. It is true that in this case, evidence available is confined to that of Ext.P3, supported by evidence of PW1 to PW6 and the postmortem report. According to the learned Public Prosecutor, the trial court rightly observed Ext.P3 as a dying declaration since she died soon after recording the same after narrating the occurrence. Therefore, no offence alleged by the prosecution is proved beyond a reasonable doubts and therefore, the trial court rightly entered into conviction. 15. The question to be decided is, what is the evidentiary value of Ext.P3 First Information Statement in the instant case. On reading Ext.P3, the same would recite the occurrence before the commission of suicide by xxxx. Even though it was recorded as a First Information Statement, after one month xxxx died in consequence of the burn injuries. 15. The question to be decided is, what is the evidentiary value of Ext.P3 First Information Statement in the instant case. On reading Ext.P3, the same would recite the occurrence before the commission of suicide by xxxx. Even though it was recorded as a First Information Statement, after one month xxxx died in consequence of the burn injuries. In this connection, it is relevant to refer the Division Bench decision of this Court in Ebi @ Philip Ninan Vs. State of Kerala, reported in 2024 [3] KHC 327 : 2024 KLT Online 1366 . In paragraph No.11 of the judgment, the Division Bench considered the First Information Statement in the form of dying declaration and held that the law does not say who should record dying declaration nor is there any prescribed format or procedure for the same. The first information statement given by the victim could be treated as a dying declaration falling under section 32(1) when after making the statement the victim dies provided the statement relates to the cause of his/her death or any of the circumstances of the transaction which resulted in his/her death. After making the statement before CW21, the victim succumbed to her injuries and therefore the statement (Ext.P3) can be treated as a dying declaration. However, the crucial question is whether the dying declaration would inspire the full confidence of the court to form the sole basis of conviction. 16. Section 32 of the Evidence Act deals with dying declaration and it has been provided as under: “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant . –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: –– (1) When it relates to cause of death. ––When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. ––When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. (2) or is made in course of business.– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him. (3) or against interest of maker.– When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. (4) or gives opinion as to public right or custom, or matters of general interest.– When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen. (5) or relates to existence of relationship.– When the statement relates to the existence of any relationship 1 [by blood, marriage or adoption] between persons as to whose relationship 1 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (5) or relates to existence of relationship.– When the statement relates to the existence of any relationship 1 [by blood, marriage or adoption] between persons as to whose relationship 1 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. (6) or is made in will or deed relating to family affairs.– When the statement relates to the existence of any relationship 1 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. (7) or in document relating to transaction mentioned in section 13, clause (a).– When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a). (8) or is made by several persons and expresses feelings relevant to matter in question.– When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.” 17. In the instant case, the trial court found Ext.P3 as a dying declaration and read the same so along with evidence of PW1 and PW2 to hold that the accused herein trespassed upon the ‘layam’ of xxxx and compelled her to accompany him along with the gold ornaments. Thereafter he outraged her modesty. Since Ext.P3 would satisfy the essentials of a dying declaration, the trial court rightly found the same as a dying declaration. So the status of Ext.P3 herein is that of a dying declaration. 18. Coming back, in order to bring home the offence under Section 452 of IPC, the prosecution has to prove the following:- (a) that the accused committed house-trespass as defined in section 442 of the Indian Penal Code, 1860; (b) that the said house-trespass was committed after the accused made preparation for causing hurt to, or for assaulting, or for wrongfully restraining some person; or for putting some person in fear of hurt, assault or wrongful restraint. 19. The other offence found by the trial court is306 IPC. 19. The other offence found by the trial court is306 IPC. In order to prove an offence under Section 306 IPC, the prosecution has to prove the following:- (i) the deceased committed suicide; (ii) the accused instigated or abetted for committing suicide (committing suicide by itself is a crime); (iii) direct involvement by the accused in such abetment or instigation is necessary. 20. In Ramesh Kumar v. State of Chhattisgarh ( AIR 2001 SC 3837 : 2001 (9) SCC 618 ), it was held that where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option but to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that - (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction, and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 21. Ingredients to attract offence under section 354 of IPC are as under: (1) That the assault must be on a women, (2) That the accused must have used criminal force on her, and (3) That the criminal force must have been used on the woman intending thereby to outrage her modesty. An act will amount to outraging the modesty of a woman if it is such which could be perceived as one capable of shocking sense of decency of a woman. Modesty of a woman is her sex, it is virtue which attaches to a female owing to her sex. Modesty is quality of being modest and in relation to woman, it is womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct. 22. Modesty of a woman is her sex, it is virtue which attaches to a female owing to her sex. Modesty is quality of being modest and in relation to woman, it is womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct. 22. If reliance is given to Ext.P3, supported by the evidence of PW1 and PW2, it could be gathered that the accused, who followed xxxx while she was studying at the school with demand of marriage, harassed her continuously, even though he was warned by her father. Later, in order to avoid his continuous harassment and nuisance, she dropped her studies at 10 th standard. While so, on the date of occurrence, the accused entered into the dwelling house (layam) of xxxx without her consent and compelled her to accompany him along with her gold ornaments. When xxxx refused to do so, the accused pushed her on the cot, tore her ‘nighty’ and thereby her modesty was outraged. The evidence would suggest that xxxx was so upset in consequence of the overt acts at the instance of the accused and she was found crying even in the evening when PW1 returned back to the house. It was thereafter she attempted to commit suicide, though she survived for one month and died in the said attempt because of the burn injuries, as established by evidence. In such a case, it could only be held that the trial court rightly appreciated the evidence and found commission of offences punishable under Sections 452, 354 and 306 of IPC by the accused. In such circumstances, the argument advanced by the learned Amicus Curiae would not succeed to interfere with the conviction. Thus the said conviction does not require any interference. 23. Coming to the sentence, the same is too moderate considering the gravity of offence and the sentence provided for the said offences. Accordingly, sentence also does not require any interference. 24. In the result, this appeal fails and is dismissed accordingly. The order suspending sentence and granting bail to the appellant/accused stands cancelled with direction to appear before the trial court forthwith to undergo the sentence. Failing which the trial court shall execute the sentence forthwith. Registry is directed to forward a copy of this judgment to the trial court forthwith for information and compliance.