P. SHAJI v. THE STATE OF KERALA

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE G.GIRISH

WEDNESDAY, THE 9 TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 CRL.REV.PET NO. 1767 OF 2006 AGAINST THE JUDGMENT DATED 14.02.2006 IN CRL.A NO.103 OF 2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY AGAINST THE JUDGMENT DATED 05.03.2001 IN SC NO.46 OF 1998 OF ADDITIONAL ASSISTANT SESSIONS JUDGE, THALASSERY

REVISION PETITIONERS/APPELLANT/ACCUSED:

1 P. SHAJI,

S/O. RAGHAVAN, AGED 35 YEARS,

COOLIE, VELLONNI, KELAKAM,

KANNUR DISTRICT.

2 THANKAMMA,

W/O. RAGHAVAN,

AGED 68 YEARS, VELLONNI, KELAKAM,

KANNUR DISTRICT.

BY ADV P.SHEEBA

RESPONDENT/ RESPONDENT/COMPLAINANT:

THE STATE OF KERALA

PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

ERNAKULAM.

SMT. SEETHA S., SR. PUBLIC PROSECUTOR

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.04.2025, THE COURT ON 09.04.2025 PASSED THE FOLLOWING:

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O R D E R

The petitioners are the accused in S.C.No.46/1998 o n the files of the Additional Assistant Sessions Judge, Thalassery , who were convicted and sentenced by the said court for the c ommission of offence under Section 306 I.P.C and Section 498A I.P.C. The sentences awarded were rigorous imprisonment for five years a nd fine Rs.50,000/- under Section 306 I.P.C and rigorous im prisonment for two years under Section 498A I.P.C. A default sentence of rigorous imprisonment for two years was also prescribed for non payment of fine. Though the petitioners preferred appeal befo re the Sessions Court, Thalassery, the learned Additional Sessions Judge (Adhoc) III, Thalassery confirmed the conviction and sentence aw arded by the Trial Court. It is against the aforesaid judgment dated 14.02.2006 of the Appellate Court in Crl.A.No.103/2001, that the peti tioners are here before this Court with this Revision Petition.

2. The prosecution case relates to the suicide of one Mrs. Shyla @ Reena, the wife of the first petitioner herein, o n 05.03.1996 due to the alleged cruelty meted out to her by the petitio ners. The second petitioner is the mother of the first petitioner. It is alleged that ever

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since the marriage of the deceased Shyla with the f irst petitioner on 03.05.1993, the petitioners had been subjecting her to cruelty demanding more dowry. It is stated that the parent s of the deceased Shyla were not able to honour their commitment to p urchase 50 cents of land in the name of the first petitioner as prom ised at the time of marriage of the deceased with the first petitioner. According to the prosecution, the petitioners had been humiliating d eceased Shyla by inflicting physical and mental torture upon her due to the failure of her parents to purchase 50 cents of land as agreed at t he time of marriage of the deceased with the first petitioner. Unable to bear the tortures allegedly inflicted by the petitioners, the deceased Shyla, along with her 1½ year old male child, jumped into the well of the house of the petitioners at about 7:00 a.m on 05.03.1996. Thoug h the local people who rushed to the spot retrieved the deceased lady as well as her baby from the well, the said lady is said to have breath ed her last while being taken to hospital. However, the 1 ½ year old male child of the deceased survived due to the timely medical treatme nt given to him.

Thus, the petitioners are alleged to have committed the aforesaid offences.

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3. In the trial conducted before the learned Additi onal Assistant Sessions Judge, Thalassery, 15 witnesses were examined from the part of the prosecution as PW1 to P15 and sixtee n documents were marked as Exts.P1 to P16. Five material objects were identified as MO1 to MO5. To the questions put to the petitioners by the learned Trial Judge under Section 313 Cr.P.C., the petitioners to ok up a plea of total denial. From the part of the petitioners, six witn esses were examined as DW1 to DW6 and two documents were marked as Exts .D1 and D2.

After an evaluation of the aforesaid evidence, and hearing both sides, the learned Additional Assistant Sessions Judge fou nd that the prosecution has successfully established the charge levelled against both the petitioners. Accordingly, the petitioners were awarded the sentence as stated above. In the appeal, the learn ed Additional Sessions Judge made a reappraisal of the entire evi dence, and found that there is absolutely no reason to interfere wit h the findings of the Trial Court. Accordingly, the appeal was dismissed , confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above verdict of the Appellate Court, the petitione rs have filed this revision petition before this Court.

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4. Heard the learned counsel for the petitioners a nd the learned Public Prosecutor representing the State of Kerala.

5. Among the witnesses examined from the part of th e prosecution, PW3, PW4 and PW5 are the witnesses relie d on by the prosecution to establish the allegation that the de ceased was being subjected to cruelty by the petitioners. PW4 and PW5 are respectively the mother and brother of the deceased, and PW3 a ne ighbour of the deceased at the place where she had been residing a t the house of her husband. PW3 was declared hostile by the prosecution during re-examination since she testified before the Trial Court in cross-examination, that the deceased was found to b e in a depressive mood right from the very beginning when she came to the residence of the petitioners after the marriage with the first p etitioner. PW3 had also stated during cross-examination that the mothe r of the deceased had told her that the deceased was having a previou s history of attempt to commit suicide, before her marriage with the first petitioner.

However, PW3 had stated in chief examination that t he deceased had told her that the petitioners were subjecting her t o cruelty. It is also stated by PW3 during chief examination that she had the occasion to talk to the deceased two days prior to her suicide, and that on that

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occasion, the deceased was found to be in a pensive mood due to some issue regarding some glass tumblers taken away by the brother of the first petitioner. PW4 and PW5, the mother a nd younger brother of the deceased, had stated that the deceased used to tell them whenever she came back to their residence that the petitioners were treating her with cruelty due to the failure of her parents to purchase the landed property, as agreed, at the time of her marriage with the first petitioner. PW4 and PW5 also deposed before th e Trial Court about two letters which they received from the dece ased in which the cruelty suffered by her at the hands of the petitioners were said to have been narrated. Among the above two letters which ar e marked as Exts.P4 and P6 respectively, one of those letters, i. e. Ext.P6, was said to have been written by the deceased on the day pri or to the date of her suicide. In Ext.P6 letter addressed to PW5, the deceased had stated her resolve to commit suicide along with her toddler by jumping into the well at the house of the petitioner. In E xt.P4 letter, the deceased had stated that, even though she did all t he work at the house of the petitioners, the second petitioner alw ays maintained animosity with her. In addition to the above, the d octor who conducted the autopsy (PW10) had noted that when he unfolded the clenched left

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hand fingers of the dead body, he could find an ins cription there, in blue ink as “Ammayum makanum koodi enne konnu… ammayanu”

(The mother and son have killed me.. It is the moth er..). It is based on the aforesaid evidence that the prosecution has set up the case that the cruelty meted out to the deceased at the hands of the petitioners was the cause of her suicide committed on 05.03.1996.

6. It is true that the evidence tendered by PW3, PW4 and PW5 contained indications that the deceased had told th ose witnesses about the matrimonial cruelty meted out to her at the ins tance of the petitioners. But the law is trite that every act of cruelty by the husband and in-laws will not constitute the offence under S ection 498A IPC.

Since the deceased had committed suicide, it could be said that the cruelty so meted out to her at the instance of the petitioners, was of such a nature as to drive her to suicide. However, if there are reasons to think, from the evidence on record, that there w ere other causative factors for the suicide of the victim, then it woul d be highly unsafe and improper to fasten the accused with the criminal li ability under Section 498A IPC for the sole reason of suicide of the vic tim. In the case on hand, there is evidence pointing to the fact that t he victim who was depressive in nature, had developed paranoid schizophrenia pursuant to

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the delivery of her child. The evidence in the abov e regard will be dealt with hereafter while discussing the scope and appli cability of Section 306 IPC.

7. While coming to the question whether there was a betment of suicide as envisaged under Section 306 I.P.C, it i s to be looked into whether the harassment meted out to the deceased wa s of such imminent nature as to instigate her to commit suici de. True that there is the presumption under Section 113A of the Indian Evidence Act that when a woman had committed suicide within a period of seven years from the date of her marriage, and it is shown that her husband or the relative of her husband had subjected her to cruelt y, the Court may presume, having regard to all the other circumstanc es of the case, that such suicide had been abetted by her husband or suc h relative of the husband. But the provisions contained in the afore said Section will not absolve the responsibility of the prosecution to es tablish that the facts and circumstances of the case revealed that the cru el conduct on the part of the husband or such relative were of such a nature as to instigate the deceased to commit suicide.

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8. While dealing with the presumption under Sectio n 113A Evidence Act, the Hon’ble Supreme Court, in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, held as follows:- “This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist.

A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the

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other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression — “the other circumstances of the case” used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says — “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”

9. Thus, the presumption under Section 113A is not mandatory, but only permissive. A consideration of the whole facts and circumstances of the case may compel the Court to i nvoke the presumption, or may dictate the conscience of the C ourt to abstain from drawing the presumption. In short, the presump tion under Section 113A Evidence Act is dependent on the natur al and logical impact of the peculiar facts and circumstances of each case.

10. For a conviction under Section 306 I.P.C, there must be clear evidence of direct or indirect acts of incitement t o commit suicide. The

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cause of suicide, especially in the context of abet ment, involves complex attributes of human behaviour and reactions , requiring the Court to rely on cogent and convincing proof of the role of the accused in instigating the act. Mere allegations and haras sment are not enough unless the actions of the accused were so compellin g that the victim perceived no alternative but to take her own life. It is also very important that such actions must be proximate to th e time of suicide.

The law in this regard has been settled by a plethora of decisions of the Hon’ble Supreme Court. Very recently, the Apex Cour t in Jayedeepsinh Pravinsinh Chavda v. State of Gujarat [(2025) 2 SCC 116] held as follows in paragraph Nos.29 and 30 of the j udgment in the said case.

“29. The act of abetment must be explicitly demonstrated through actions or behaviours of the accused that directly contributed to the victim's decision to take their own life.

Harassment, in itself, does not suffice unless it is accompanied by deliberate acts of incitement or facilitation.

Furthermore, these actions must be proximate to the time of the suicide, showcasing a clear connection between the accused's behaviour and the tragic outcome. It is only through the establishment of this direct link that a conviction under Section 306 IPC can be justified. The prosecution bears the burden of proving this active involvement to hold the accused accountable for the alleged abetment of suicide. The

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same position has been laid down by this Court in several judgments, such as:

(i) M. Mohan v. State [M. Mohan v. State, (2011) 3 SCC 626 :

(2011) 2 SCC (Cri) 1] ;

(ii) Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] ;

(iii) Kamalakar v. State of Karnataka [Kamalakar v. State of Karnataka, 2007 SCC OnLine Kar 824] .

30. Therefore, for a conviction under Section 306IPC, there must be clear evidence of direct or indirect acts of incitement to commit suicide. The cause of suicide, especially in the context of abetment, involves complex attributes of human behaviour and reactions, requiring the court to rely on cogent and convincing proof of the accused's role in instigating the act. Mere allegations of harassment are not enough unless the accused's actions were so compelling that the victim perceived no alternative but to take their own life. Such actions must also be proximate to the time of the suicide.”

11. Thus, it is imperative to look into the aspect whether the alleged acts of harassment attributed to the petiti oners were of such a serious and proximate nature as to instigate the su icide which the deceased had committed on 05.03.1996. It is in thi s context that the evidence adduced by the accused through the oral testimony of DW1, a Psychiatrist who treated the deceased and issued th e prescriptions which are marked as Exts.D1 and D2, assumes significance. It could be seen from the evidence of DW1 that the above Psychi atrist of the

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Government Medical College Hospital, Kozhikode had the occasion to treat the deceased on 15.01.1995 and 13.03.1995 for the mental disease by name Postpartum Paranoid Schizophrenia. It is stated by DW1 that the deceased had been brought by her husba nd for treatment before him, with the aforesaid disease of four months duration. It requires no reference to medical authorities to say that the disease, ‘Paranoid Schizophrenia’ is a very serious mental disease which has to be medically managed by continuous treatment . Delusions, hallucinations, depression, suicide tendency etc. a re common features of those suffering from Paranoid Schizophrenia. Th e above aspect has been spoken by DW1 in his testimony before the Tria l Court. But, unfortunately, the Trial Court is seen to have brus hed aside the evidence of DW1, stating that the period when the d eceased approached the above Psychiatrist for treatment was about one year prior to the suicide, and hence the evidence in the above regard is not having any significance. The stand taken by the Tr ial Court in the above regard is patently erroneous since it could b e seen from an overall appreciation of the evidence of DW1 that th e mental ailment suffered by the deceased was of such a nature that continuous medication was absolutely necessary, though the sym ptoms could be

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controlled within a period of few months. It appea rs that after two consultations done by the deceased by approaching D W1, the treatment prescribed by the above Psychiatrist had not been continued by the deceased thereafter. Therefore, the chances of the above mental ailment contributing the instinct for suicide, cannot be ruled out.

Neither the Trial Court, nor the Appellate Court, h ad taken into account the above aspect of paramount importance while deci ding the issue of abetment of suicide in the case on hand. It is rea lly disgusting to note that the Appellate Court had misunderstood the stat ement of DW1 about the duration of the mental ailment of the dec eased, which he stated as four months. The Appellate Court seems to be of the fallacious view that the maximum period during whic h the aforesaid mental ailment subsists is four months. The observ ation in the above regard in the concluding portion of paragraph No.38 in the judgment of the Appellate Court, is patently erroneous. Having regard to the above evidence of DW1 on the basis of the prescriptions w hich he had issued as Exts.D1 and D2, and also the evidence tendered b y PW3 during cross-examination that the mother of the deceased h ad told her that there was a previous history of attempted suicide o n the part of the deceased before her marriage, I am of the view that it would be highly

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unsafe and improper to fasten the petitioners with the criminal liability under Section 306 I.P.C. When there are reasons to believe that the suicide of the victim was related to the mental ail ment suffered by her, it would not be possible to link that suicide with the offence of cruelty as envisaged under Section 498A IPC. Therefore, I f ind that the findings of the Trial Court as well as the Appellat e Court that the petitioners committed the offences under Sections 3 06 and 498A I.P.C, are liable to be set aside.

In the result, the revision stands allowed. The con viction and sentence awarded by the Trial Court and Appellate Court upon the petitioners for the commission of the offences unde r Sections 498A and 306 IPC stand set aside. The petitioners are acqui tted of the aforesaid offences. Their bail bonds stand cancelled and they are set at liberty.

(Sd/-)

G. GIRISH, JUDGE

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