Vismaya Dowry Death Case: Kerala High Court Refuses To Suspend Husband Kiran Kumar's 10-Yrs Sentence

The Kerala High Court on Tuesday dismissed the application filed by Kiran Kumar, the convict in the Vismaya dowry death case, seeking an interim order for suspension of his 10 years sentence.

The application was moved in a Criminal Appeal against his conviction and sentence handed down in May this year following his wife's death under mysterious circumstances, after she had complained of dowry harassment.

The Division Bench consisting of Justice Alexander Thomas and Justice Sophy Thomas observed that, 

Taking into account the nature of accusation, seriousness of the offence and also its social impact, this is not a fit case warranting suspension of sentence. Moreover, the presumption of innocence goes with the conviction and sentence. There is no patent infirmity in the order of conviction to render it prima facie erroneous...Pending appeal, if the sentence is suspended so as to release the applicant/appellant on bail, it will send a wrong message to the society. For all these reasons, we are not inclined to allow this application.

However while passing the order the Division Bench clarified that, 

It is made clear that the observations and findings in this order are for the limited purpose of this application and will not in any way affect the contentions to be taken by the applicant-appellant in the above appeal. 

Kumar sought suspension of the execution of the sentence and release on bail, pending disposal of the criminal appeal.

Vismaya, a 23-year-old Ayurveda medical student, was found dead in her matrimonial home under mysterious circumstances last year. She allegedly died by suicide, after facing harassment over dowry. The death happened within a year of her marriage. 

The prosecution case is that the appellant/accused abetted and instigated her to commit suicide, subjecting her to severe mental and physical cruelties and he also demanded dowry from the deceased and her parents, in contravention of the provisions of the Dowry Prohibition Act, 1961.

In May 2022, Kollam Additional District and Sessions Judge convicted her husband under Sections 498A (subjecting a woman to cruelty for dowry), 306 (abetment of suicide) and 304B (dowry death), among others of the IPC and sentenced him to ten years imprisonment and a fine of ₹12.5 lakh.

The Counsel appearing for the applicant/appellant, Advocate C. Prathapachandran Pillai, contended that the finding of the trial court was based on conjunctures, surmises, assumptions and on per se inadmissible evidence. The Counsel submitted that the conviction was mainly based on the contents of the call records, however, the said call records were never subjected to investigation, though 198 records were marked from among them. The Counsel further contended that no materials were available to presume the commission of an offence under Section 304B of the IPC and Section 113B of the Evidence Act also will not come into operation, as there was nothing to show that, soon before the death, the victim was subjected to harassment, in connection with demand of dowry.

Special Government Pleader for women and children, Advocate Ambika Devi, sought for the dismissal of this application, contending that since there is the finding of the competent court of jurisdiction, on the guilt of the applicant/accused, he cannot claim the benefit of the presumption of innocence, for the purpose of getting a suspension of sentence awarded by the trial court. 

Counsel appearing for the father of the deceased, Advocate S. Rajeev, filed argument notes before the Court, incorporating the relevant portions of the deposition of witnesses as well as the extract of the call records between the deceased, her parents, sister-in-law and her childhood friend, to show that she was subjected to physical and mental cruelties on demand of dowry by the applicant/ appellant.

The deceased wanted the applicant/appellant to take her to her paternal house, to seek blessings of her father in the mid-night of 20.06.2021 and since he refused, they quarrelled with each other, and later she committed suicide, is the case projected by the applicant/appellant. 

However, the Court observed that the story put forth by the applicant/appellant and his father does not seem trustworthy prima facie. 

The story put forward by the applicant/appellant and his father seems to be not trustworthy prima facie, and it appears to be an exaggeration. In normal human parlance, it is difficult to believe that since her father did not respond to her call or even sent a curse message, drove her to take a decision to end her life at her budding age, that too, just one year after her marriage.

The Court after perusing Section 304B of IPC and Section 2 definition of 'Dowry', in the Dowry Prohibition Act 1961, observed that the definition itself shows that any property or valuable security, given or agreed to be given either directly or indirectly, by one party to the marriage to the other party to the marriage or by parents of either parties to the marriage or by any other person, to either party to the marriage or to any other person at or before, or any time after the marriage in connection with the marriage of the said parties is dowry.

So even if there was no property or valuable security given or agreed to be given at or before the marriage, it can be even at any time after the marriage also, the Court observed. 

The Court observed that in this in this instant case, even if there was no demand for dowry before or at the time of marriage, as pleaded by the applicant/appellant, the subsequent demand made by him is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961.

The Court after considering the facts and circumstances of the case and the contentions raised by the Counsels observed that appreciation of evidence by the trial court in the light of available facts and circumstances does not show any patent infirmity in the order of conviction to make it prima facie erroneous.

Taking into account the nature of the accusation, the seriousness of the offence and also its social impact, the Court observed that this instant case was not a fit case warranting suspension of sentence. Furthermore, the Court observed that when the appeal is pending, if the sentence is suspended so as to release the applicant/appellant on bail, it will send a wrong message to society.

Thereby, the Court dismissed the application. 

Case Title: Kiran Kumar S v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 649

Click Here To Read/Download The Order