HARIDAS Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 and 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 Ss. 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 Sec. 498A of the Indian Penal Code (hereinafter referred to as the IPC). It is submitted that to constitute an offence under Sec. 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 Sec. 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 Sec. 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 Sec. 324 of IPC, the trial Court did not convict the appellant of the offence under Sec. 324 of the IPC and only convicted the appellant under Sec. 323 of IPC.