Kerala High Court
James vs State Of Kerala on 18 December, 2024
2024:KER:95354
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 18
DAY OF DECEMBER 2024/27TH AGRAHAYANA,
1946
CRL.A NO. 2185 OF 2007
AGAINST
THE
JUDGMENT
DATED
19.10.2007
IN
SC
NO.325
OF
2005
OF
ADDITIONAL
SESSIONS
JUDGE
(ADHOC-I),
ERNAKULAM
APPELLANT/ACCUSED:
AMES, S/O.OUSEPH, AGED 42 YEARS, MANELY VEETTIL,
J
PALIYAMBILLY BHAGOM, PULLUVAZHY KARA, RAYAMANGALAM
VILLAGE, ERNAKULAM DISTRICT.
Y ADVS.
B
SRI.T.D.ROBIN
SRI.R.ANUP
RESPONDENT/COMPLAINANT:
TATE OF KERALA, REPRESENTED BY S THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SMT.SEENA C, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2024, THE COURT ON 18.12.2024 DELIVERED THE FOLLOWING: 2024:KER:95354 Crl.Appeal No.2185 of 2007 2 C.R J U D G M E N T This appeal is at the instanance of the sole accused in SC No.325 of 2005 on the file of Additional Sessions Judge (Adhoc-I), Ernakulam challenging his conviction and sentence under Section 306 of IPC, vide judgment dated 19.10.2007. 2. The prosecution case is that, between 10.30 p.m on 26.04.1998, and 5.30 a.m on 27.04.1998, one Ms.Bindu committed suicide by hanging, on the lean-to of the house of the accused bearing No.12/700 in Rayamangalam Panchayath, and it was the accused who abetted her suicide. The accused removed her dead body to a rubber estate for destroying evidence. So he was charged under Section 306 and 201 of IPC. 3. On committal, and on appearance of the accused before the trialcourt,chargewasframedagainsthimunderSections306 and 201 of IPC, towhich,hepleadednotguiltyandclaimedtobe tried. 4. PWs1to10wereexamined,Exts.P1toP15weremarked and MOs 1 to 3 were identified. 5. On closure of prosecution evidence, accused was 2024:KER:95354 Crl.Appeal No.2185 of 2007 3 questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and he pleaded innocence. No defence evidence was adduced except marking Ext.D1 thondi list. 6. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found that prosecution succeeded in proving the guilt of the accused under Section 306 of IPC, and he was convicted thereunder. But destruction of evidence could not be proved and so he was acquitted under Section201ofIPC. UnderSection306ofIPC,he was sentenced to undergo simple imprisonment for one year and to pay fine of Rs.10,000/- with a default sentence of simple imprisonment for two months. Challenging the conviction and sentence under Section 306 of IPC, he preferred this appeal. 7. HeardlearnedcounselfortheappellantandlearnedPublic Prosecutor. 8. Learnedcounselfortheappellantwouldcontendthat,the conviction and sentence of theappellantunderSection306ofIPC is not sustainable either in law or on facts. Prosecutioncouldnot prove that, Exts.P4 and P5 letters were written by the deceased. 2024:KER:95354 Crl.Appeal No.2185 of 2007 4 The deceased was an epileptic patient suffering from depression andthereisnothingtoshowthattheappellantabettedhersuicide. So, according to him, the impugned judgment is liable to be set aside. 9. HeardlearnedcounselfortheappellantandlearnedPublic Prosecutor for the respondent-State. 10. PW2-the brother of the deceased saw the dead bodyof his sister Bindu, in the rubber plantation near to his house, at 7.30 a.m on 27.04.1998. He would say that, his sisterwasinan affair with the accused. After her death, he saw a letter in the pocket of his shirt, which was written by deceased Bindu and he identified that letter as Ext.P4. Another letterrecoveredfromthe dead body of deceased Bindu was identified by him as Ext.P5. It was he who produced Ext.P3 series notebooks of deceased Bindu before Police. He further statedthat,marriageofdeceasedBindu was proposed with one Mr.Saji and she had agreed to inform her decision within two days. She had handed over her chain and bangles to her mother, two days prior to her death. PW4-the paternal uncle of the deceased, also stated about the affair of deceased Bindu withtheaccused,andaccordingtohimwhenthat 2024:KER:95354 Crl.Appeal No.2185 of 2007 5 relationship became strained, she committed suicide. 11. Exts.P4 and P5 are the letters alleged to have been written by deceased Bindu prior to her death. Ext.P4 letter was addressedtoPW2-her brother,andExt.P5letterwasrecoveredby Police from her dead body, at the time of inquest. 12. PW2 produced Ext.P3 notebooks of deceased Bindu, before Police. Ext.P15-thereportofthehandwritingexpertshows that Exts.P4 and P5 letters were written by theverysameperson who had written Ext.P3 series notebooks. 13. Learned counsel for the appellant would say that, since PW2 had notseendeceasedBinduwritingExt.P3seriesnotebooks or Exts.P4 and P5 letters, it cannot be accepted under Section47 of the Indian Evidence Act, 1872. 14. Section 47 of the Indian Evidence Act reads thus: "47. Opinion as to handwriting, when relevant. When the court has to form an opinion as to the person by whom any document was written or signed, the opinionofanypersonacquaintedwiththehandwritingofthe person by whom it issupposedtobewrittenorsignedthat it was or was not written or signed by that person, is a relevant fact. Explanation. - A person is said to be acquainted with 2024:KER:95354 Crl.Appeal No.2185 of 2007 6 the handwriting of another person when he has seen that person write, or when he had received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressedtothatperson,orwhen,intheordinarycourseof business,documentspurportingtobewrittenbythatperson have been habitually submitted to him". 15. Learned counsel would contend that, since PW2 has no case that, he had seen the deceased writing Ext.P3 series notebooksorExts.P4andP5letters,itcannotbesaidthat,hewas acquainted with thehandwritingofthedeceased. But,PW2isthe biological brother of the deceased, and they were living in the same house. Being the brother,itcannotbesaidthathewasnot familiarwiththehandwritingofhisownsister. HeproducedExt.P3 seriesnotebooksbeforePolice,whichwereusedbythedeceasedin her school, and also in her tailoring class. Sincethosenotebooks were written, while the deceased was attending her class, there was no chance for her brother, to see her writing those books. Moreover, since the deceased prepared Exts.P4 and P5 letters in secrecy, before committing suicide, there was no probability for anybodyseeingthedeceasedwritingthoseletters. PW2identified Exts.P4 and P5 letters, astheletterwrittenbyhisdeceasedsister 2024:KER:95354 Crl.Appeal No.2185 of 2007 7 Bindu. PW2 would saythat,Ext.P4letterwasfoundinthepocket of his shirt, which was kept in the room of the deceased. He himself produced Ext.P3 series notebooks of his sister before Police,tocomparethehandwritingwiththehandwritinginExts.P4 andP5. Biologicalbrotherlivingwithhissisterinthesamehouse, sincetheirchildhood,maybewellacquaintedwiththehandwriting of his sister, and for identifying her handwriting in a particular document, he need not see her writing the same. So,whenPW2 identified Ext.P3 series notebooks and Exts.P4 and P5 letters as that of his sister, there is no reason to disbelieve him. So, the contention of the learned counsel for the appellant that Ext.P15 reportofthehandwritingexpertcouldnotbeaccepted,asPW2-her brotherhadnotseenthedeceasedwritingExt.P3seriesnotebooks or Exts.P4 and P5 letters, is not tenable. 16. Thenextcontentiontakenupbylearnedcounselforthe appellant is that, though Exts.P4 and P5 documents were marked through PW2-the brother of the deceased, the contents of those documents were not put to the accused. So, according to him, those letters could not be relied on, to find that the accused abetted suicide of Ms.Bindu. 2024:KER:95354 Crl.Appeal No.2185 of 2007 8 17. Learned counsel would submit that, the wholeobjectof Section 313 of Cr.P.C is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him. Fairnessdemandsthateachmaterialcircumstanceshouldbe put simply and separately in a way, that an illiterate mind or one which is perturbed or confused can readily appreciate and understand. He would further argue that, when acertainthingis to be done in acertainway,itmustbedoneinthatwayornotat all. When each andeveryincriminatingcircumstanceshouldhave beenputtotheaccusedunderSection313ofCr.P.C,itshouldhave been done by the trial court, without fail. 18. Learned Public Prosecutor relying on the decision of Hon'ble Apex Court in Naresh Kumar v. State of Delhi [2024 KHC 6325 : AIR 2024 SC 3233] would say that, non examination or inadequate examination under Section 313 of Cr.P.C, on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned, unless it has resulted inmaterialprejudice to him or in miscarriage of justice. Moreover, a mere defective/improper examination under Section 313wouldnotbea ground, to set aside conviction of the accused, unless it has 2024:KER:95354 Crl.Appeal No.2185 of 2007 9 resulted in prejudice to the accused. 19. Decision of the Hon'ble Apex Court Alister Anthony Pareirav.StateofMaharashtra[2012KHC4015:AIR2012SC 3802] was also relied on by the learned Public Prosecutor to say that, if at all the trial court failed to draw the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately, that may not by itself render the trial bad in the eye of law. 20. Paragraph57ofAlisterAnthony'scasecitedsuprareads thus: "5 7. From the above, the legal position appears to be this:theaccusedmustbeapprisedofincriminatingevidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawingtheattentionoftheaccused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him,hewasaffordedanopportunityto explainwhathewantedtosayinrespectofprosecutioncase against him and secondly, such omission has not caused prejudice to him resulting infailureofjustice.Theburdenis on the accused to establish thatbynotapprisinghimofthe 2024:KER:95354 Crl.Appeal No.2185 of 2007 10 incriminatingevidenceandtheinculpatorymaterialsthathad come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice". 21. In the case onhand,theaccusedwaswellawareofthe charge levelled against him, that he abetted the suicide of deceased Bindu, Exts.P4 and P5 letters also were put to him, during his examination under Section 313 of Cr.P.C, and copies of those documents, also were given to him. So he had got every opportunity to explain, what he had to say about those letters. 22. Section32(1)oftheIndianEvidenceAct,1872provides that, statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found,orwhohasbecome incapable of giving evidence, or whose attendance cannot be procured,withoutanamountofdelayorexpensewhich,underthe circumstances of the case, appearstothecourtunreasonable,are themselves relevant facts, 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. 2024:KER:95354 Crl.Appeal No.2185 of 2007 11 23. Ext.P5, the suicide note recovered from the body of deceased Bindu, reads thus: "ഞാൻ എല്ലാവരോടും വിട പറയുന്നു. കാരണം ഞാൻ അവനെയും അവൻ എന്നെയും സ്നേഹിച്ചു തുടങ്ങിയിട്ട് 10 വർഷമായി. അതിനുള്ളിൽ 5 വർഷം അവൻ ഇവിടെ ഉണ്ടായിരുന്നില്ല. എങ്കിലും 5 വർഷം അവൻ എന്നെ ശരീരം കൊണ്ടും മനസ്സുകൊണ്ടും ഒത്തിരി സ്നേഹിച്ചു. 1988, 89-ൽ സ്നേഹിച്ചു തുടങ്ങി. പിന്നീട് 4/12/93-ൽ തുടങ്ങി, 6/2/94 വരെ. വീണ്ടും 7/5/95-ൽ തുടങ്ങിയിട്ട് 21/4/98 വരെ. അവസാനമായപ്പോൾ അവൻ എന്നോട് പിരിയാം എന്നു പറഞ്ഞു. എന്നെയും അവനെയും കുറിച്ച് ഈ നാട്ടിലും അവൻ്റെ വീട്ടിലുള്ളവർക്കും ശരിക്കും അറിയാം. പാവം അവൻ്റെ ഭാര്യക്ക് ഒന്നും ഞങ്ങളെക്കുറിച്ച് അറിയില്ല. അവളോട് പറയണം ഇനി പോകുമ്പോൾ അവനെ ഒറ്റയ്ക്കാ- ക്കിയിട്ട് പോകരുതെന്ന്. ഇപ്പോഴും അവന് എന്നെ പോലെയുള്ള ഒരുവളെ തന്നെ നശിപ്പിക്കാൻ കിട്ടിയിട്ടുണ്ട്. അതുകൊണ്ടാണ് എന്നെ പിരിഞ്ഞത്. എന്നോട് മരിക്കാൻ പറഞ്ഞ് വിഷം വരെ വാങ്ങിത്തന്നു. എൻ്റെ കല്യാണം വരെ ഉറപ്പിച്ചു. അവൻ എന്നെ പിരിഞ്ഞത് കൊണ്ടും ഒത്തിരി വേദനിപ്പിച്ചത്കൊണ്ടുംഞാൻഎല്ലാവരോടുംവിടപറയുന്നു. അവൻ വാങ്ങി തന്ന മരുന്ന് കഴിക്കും. എന്നിട്ടും മരിച്ചില്ലെങ്കിൽ ഞാൻതൂങ്ങും.ജയിംസ്ഇവനെഓർത്ത്ഇനി എനിക്ക് ജീവിക്കണം എന്ന് ഒരു ആഗ്രഹം ഇല്ല. ഇനി എവിടെയും അവനും ഭാര്യയും ഒന്നിച്ചായിരിക്കണം അല്ലെങ്കിൽ ഭാര്യയുടെ ജീവിതം പോയി. എന്തിന് ഈ രോഗിയായ എൻ്റെ ജീവിതം കളഞ്ഞു. 7/5/95 മുതൽ എൻ്റെ ശരീരത്തെ169പ്രാവശ്യംനശിപ്പിച്ചു. പിന്നെകുറച്ചുദിവസം ഒത്തിരി സ്നേഹ വാക്കുകൾ പറഞ്ഞു. പിന്നെ എന്തിനാണ് എന്നെ മരിക്കാൻ പറഞ്ഞുശല്യംചെയ്തത്. ഇനിഞാൻഒന്നും എഴുതുന്നില്ല. എല്ലാം ഈ കുടുംബത്തിന് അറിയാം. 2024:KER:95354 Crl.Appeal No.2185 of 2007 12 ഇവൻെറ ഫോട്ടോ വീട്ടിലുണ്ട്. തിരിച്ചു വേണമെങ്കിൽ വാങ്ങിച്ചു കൊള്ളണം". 24. OngoingthroughExt.P5document,itcouldbeseenthat it contains the statement of the deceased as to the cause of her death,andthecircumstanceswhichledtoherdeath. So,Ext.P5is relevantunderSection32oftheEvidenceAct,asitcanbetreated as her dying declaration. 25. In the celebrated decision Pakala Narayana Swami v. Emperor [1939 KHC 12], the Privy Council held that, the statements written or verbal of relevant facts made by a person, whoisdead,astothecauseofhisdeath,arerelevantwhetherthe personwhomadethemwasorwasnotatthetimewhentheywere made,underexpectationofdeathandwhatevermaybethenature of the proceeding in which the cause of his death comes into question. 26. Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal atell-talestory,thesaid statement would clearly fall within the four corners of Section 32 and, therefore, admissible, as held by the Hon'ble Apex Court in 2024:KER:95354 Crl.Appeal No.2185 of 2007 13 Sharad Birdhichand Sardar v. State of Maharashtra [1984 KHC 145]. 27. In State of Madhya Pradesh v. Mohammad Shahid andAnother[2019KHC2362],theHighCourtofMadhyaPradesh held that, suicide note of the prosecutrix can be treated as dying declaration and would be admissible in evidence. Evidence as to cause of death would be relevant, not only in relation to causeof deathofpersonmakingsuchstatement,butalsotocircumstances oftransactionwhichresultedinherdeath. Wordingsinthesuicide noteclearlyindicativeofthefactthatprosecutrixwasviolatedand she committed suicide as she did not want to live a life of disgrace. 28. Inthecaseonhand,Ext.P5suicidenotewassufficientto show the cause of death of Ms.Bindu and also the circumstances which led to her suicide. There is sufficient indication in Ext.P5 that, she was sexually exploited by the accused on several occasions and thereafter he asked her to commit suicide and he even bought poison for her, asking her to commit suicide. Ext.P5 letter says that, she will consume poison bought by the accused and if she could not die of that, shewouldhangherself. Thereis evidence to show that thedeceasedhangedherself,inthelean-to 2024:KER:95354 Crl.Appeal No.2185 of 2007 14 of the house of the accused. Ext.P13 chemical report is to the effect that, fibres of the plastic rope with which the deceased hangedcouldbedetectedinthecellophanetapeimpressionstaken from the rafters in the lean-to of the house of accused. 29. The accused was facing the charge of abetting the suicide of deceased Bindu. The prosecution witnesses stated before court that, the deceased andtheaccusedwereinanaffair. The accused was a married man aged 42 as on the date of incident,andthedeceasedwasagirlaged21. Ext.P5suicidenote clearly shows the circumstances which prompted her to commit suicide. Ext.P5 letter was recovered from the body of the deceased, at the time of inquest. Exts.P4 and P5 letters were provedthroughPW2-thebrotherofthedeceased. CopyofExts.P4 and P5 letters were given to the accused. Moreover,Ext.P5letter was extractedinExt.P8inquestreportitself. WhenPW2identified Exts.P4 and P5 letters as written by his sister deceased Bindu, there was no cross examination to the effect that, those letters werenotwrittenbydeceasedBindu. TheonlyquestionputtoPW2 regarding Ext.P5 letter was that whether he had seen his sister writingthatletter. Therewasnotevenasuggestionfromthepart 2024:KER:95354 Crl.Appeal No.2185 of 2007 15 of accused that Ext.P5 letter was not in the handwriting of deceased Bindu. So, now the accused cannot contend that prejudice was caused to him by not putting the contents of that letter, in his 313 examination. 30. In Shama v. State of Haryana [2017 KHC 6958], Hon'ble Apex Court held that, dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. Intheabsenceofanykindofinfirmityor/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused, even in the absence of corroborative evidence, but with a rule of prudence, that it should be so done, with extreme care and caution. 31.InRameshGyanobaKamblev.StateofMaharashtra [2011 KHC 6705],theBombayHighCourtheldthat,forprovinga dying declaration recorded by a person/Magistrate/Executive Magistrate,itisnotessentialrequirementoflaw,thattherecorder shouldrepeat,whiledeposingbeforetheCourt,thecontentsofthe declaration, in the words spoken by the deceased as tothecause of his death or as to any of the circumstances of the transaction 2024:KER:95354 Crl.Appeal No.2185 of 2007 16 which resulted in his death. 32. As we haveseen,copyofExt.P5suicidenotewasgiven to the accused and that document was identified and marked through PW2, the brother of the accused, before court. Prosecution witnesses categoricallydeposedthat,theaccusedwas in a relation with the deceased and when that relationship got strained, she committed suicide. Ext.P5 suicide note clearly indicates the circumstances which led to herdeath,andevidently, itwastheaccusedwhoabettedhersuicide. Therewasnoserious challengeagainstExt.P5suicidenotefromthepartofaccusedand there was not even a suggestion that Ext.P5 suicide notewasnot written by the deceased. While questioning the accused under Section 313 of Cr.P.C, it was suggested to him that Ext.P5 letter waswrittenbydeceasedBinduanditwasrecoveredfromherdead body, though the contents of that letter were not put to him specifically. WhenExt.P5istreatedasthedyingdeclarationofthe deceased under Section 32(1) of the Evidence Act, and it was proved through PW2, the brother of the deceased, it was not necessary for him to depose the contents. If at allthetrialcourt while 313 questioning omitted to puttotheaccused,thecontents 2024:KER:95354 Crl.Appeal No.2185 of 2007 17 of that dying declaration, as held by the Apex Court in Naresh Kumar's case cited supra, non- examination or inadequate examinationunderSection313,onanyincriminatingcircumstance, by itself, will not vitiate a trialquatheconvictconcernedunlessit has resulted in material prejudice to him or in miscarriage of justice. SoevenifthecontentsofExt.P5letterwerenotputtothe accused specifically, it cannot be a ground to set aside his conviction, intheabsenceofevidenceofanymaterialprejudiceor miscarriage of justice. 33. In the case on hand,therewasnocasefortheaccused beforethetrialcourtthat,prejudicehasbeencausedtohimbynot putting the contents of Ext.P5 suicide note to him specifically. As we have seen, in cross examination there was no question put to PW2 challenging Ext.P5 suicide note written by the deceased. 34. In Sunil v. State of NCT of Delhi [2 023 KHC 6862], Hon'ble Apex Court held that, where thereisfailureinputtingthe incriminating circumstances to the accused, the same would not ipso facto vitiate the trial unless it is shown that, its non- compliance has prejudiced the accused. Where there is delay in raising the plea, or the plea is raised for the first time before the 2024:KER:95354 Crl.Appeal No.2185 of 2007 18 appellatecourt,itcouldbeassumedthatnoprejudicehasbeenfelt by the accused. 35. In Nar Singh v. State of Haryana[2014 KHC 4711], Hon'ble Apex Court held that, when vital incriminating circumstances were not put to accused during questioning under Section 313 Cr.P.C, the burden is upon the accused to prove that prejudice was caused to him. 36. To sum up, accused abetted suicide of the deceased. Accused failed to plead or prove any prejudice, or miscarriage of justicebynotputtingthecontentsofExt.P5lettertohim,whenhe was examined under Section 313 of Cr.P.C. He had got every opportunitytoexplainhisstandwithrespecttoExt.P5letter,ashe was well aware of the charge levelled against him, and he was furnishedwiththecopyofExt.P5letterwellinadvance. Moreover, he had not raised the plea of any such prejudice before the trial court, and such a plea is raised for the first time before the appellatecourt. So,thisCourtfindsnoreasontointerferewiththe conviction of the accused under Section 306 of IPC. 37. Regarding the sentence, learned counsel for the appellantprayedforleniency,astheaccusedisnowsufferingfrom 2024:KER:95354 Crl.Appeal No.2185 of 2007 19 coronary artery disease andmarriageofhisdaughterisscheduled etc.etc. Truethat,theincidentoccurredintheyear1998. Atthat time,theaccusedwasamarriedmanaged42. Ext.P5suicidenote will show that, wife of the accused was not aware of the relationshipwhichtheaccusedwashavingwiththedeceased. So, infactheisnotdeservinganyleniencyforabettingsuicideofa21 year old girl. Moreover, the trial court was too lenient while sentencing the accused to undergo simple imprisonment for one yearandtopayfineofRs.10,000/-only,underSection306ofIPC. No further leniency is warranted in this case and so this Court is inclined to uphold the impugned judgment. So, upholding the impugned judgment, the appeal is dismissed. Registry to forward a copy of this judgment along with the TCRtothetrialcourtforthwith,forexecutingthesentencewithout delay. Sd/- SOPHY THOMAS JUDGE smp