Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE4H DAY OF OCTOBER201312TH ASWINA, 1935 CRL.A.No. 78 of 2005 (D) ------------------------- CC NO.219/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, THRISSUR DATED2611-2001 ... APPELLANT(S)/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, CHERPU. BY GOVERNMENT PLEADER SMT.P.MAYA RESPONDENT(S)/ACCUSED: ----------------------------------------------- 1. RAMADAS, S/O.BALAKRISHNAN, KALARICKAL HOUSE, CHIRAKKAL DESOM, KURUMBILAVU VILLAGE, CHERPU, TRICHUR DISTRICT.
2. LEELA TEACHER, W/O. BALAKRISHNAN, KALARICKAL HOUSE, CHIRACKAL DESOM, KURUMBILAVU VILLAGE, CHERPU, TRICHUR DISTRICT. R1 & R2 BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J.
--------------------------------------- Crl. Appeal No.78 OF2005--------------------------------------- Dated this the 4th day of October, 2013.
JUDGMENT
The State, aggrieved by the acquittal of the accused for the offence under Section 498A of Indian Penal Code, has come up in appeal before this Court.
2. PW1 is the wife of the 1st accused and the 2nd accused is none other than the mother of the 1st accused. PW2 is the father of PW1. The marriage between the 1st accused and PW1 was solemnised on 27.10.1991 and after the marriage, PW1 took up residence in the matrimonial house and a girl child was born in that wedlock on 31.07.1992. The allegations are that ever since the marriage, PW1 has been harassed and heckled by the accused persons demanding more dowry and she was physically and mentally tortured and was treated cruelly by the accused persons. It is alleged that 27 sovereigns of gold which PW1 received at the time of marriage were taken away by the 1st accused at the behest of the 2nd accused and even though they Crl. Appeal No.78/2005 2 had promised to return the same, they had not done so. It is also alleged that after she had gone to her parental house for delivery, nobody visited her and the child and it was after six months that the 1st accused had visited the child. There were differences of opinion between the parties and after the mediation which had taken place, PW1 claims to have taken up her residence with the 1st accused. It is stated that he continued to harass PW1 and ultimately she left for her house.
3. Ext.P1 is the complaint laid by PW1. Based on Ext.P1, a crime was registered as per Ext.P5 First Information Report. Scene mahazar was prepared and after investigation, final report was laid before court.
4. The court before which final report was laid took cognizance of the offence and to the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 8 examined and Exts.P1 to P5 marked.
5. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them Crl. Appeal No.78/2005 3 and maintained that they were innocent. No defence evidence was adduced.
6. On an appreciation of the evidence in the case, the trial court came to the conclusion that no acts amounted to cruelty were established by the evidence of PWs 1 and 2 and it is insufficient, according to the lower court, to constitute cruelty under Section 498A IPC. On the basis of the above findings, the accused were acquitted.
7. Learned Public Prosecutor appearing for the State pointed out that the court below was not justified in acquitting the accused especially in view of the evidence furnished by PWs 1 and 2. The evidence of PW1, according to the learned Public Prosecutor, would show the cruelties meted out to her by the accused persons and that is supported by the evidence of PW2. The court below was not justified in not relying on the evidence of PWs 1 and 2 which would clearly show that PW1 was treated cruelly by the accused persons at the matrimonial house and she had to leave the house due to their activities. According to the learned Public Prosecutor, the evidence of PWs 1 and 2 are Crl. Appeal No.78/2005 4 sufficient to show that the offence had been made out.
8. Learned counsel appearing for the accused, on the other hand, pointed out that it has come out in evidence that it was only after the notice in the divorce petition was received by PW1 that the present complaint has been filed and there can be no doubt that the complaint has been laid as a retaliatory measure to the divorce petition. It is pointed out by the learned counsel that even going by the evidence of PWs 1 and 2, the birth ceremonies of the child and subsequent ceremonies relating to the child were performed in the matrimonial house and there is no specific overt act attributed to either the 1st or the 2nd accused which could be treated as cruel acts by the accused persons. Some vague statements are made at the time of evidence and there is nothing to show that the victim namely, PW1 had suffered any physical or mental injury at the hands of the accused persons. Learned counsel went on to point out that the court below has analysed the evidence in considerable detail and has come to the conclusion that the offence had not been made out. According to the learned counsel, no grounds are made out Crl. Appeal No.78/2005 5 to interfere with the order passed by the court below.
9. At the outset itself, this Court must remind itself that it is sitting in appeal against the order of an acquittal. Unless it is shown that the findings are so perverse or are contrary to the evidence on record, merely because a different view might be possible, this Court will not be justified in interfering with the order passed by the court below.
10. The evidence regarding the cruel acts alleged to have been committed by the accused persons remain confined to PW1. Of course, to some extent, her evidence gets support from the evidence of PW2. PW2 has stated that on a few occasion, he had gone to the matrimonial house of PW1 and pacified her. PW1 in her evidence stated about the various cruelties alleged to have been committed by the accused persons. But, it is interesting to note that except for some vague statements, there is no mention about any specific date or specific overt act committed by the accused persons. All that is raised is that they used to treat her cruelly and harass her. The evidence of PW1 shows that at the time of marriage, the accused persons had not asked for any Crl. Appeal No.78/2005 6 dowry at all even though PW2 says otherwise. The main grievance of PWs 1 and 2 seems to be that when PW2 went to the matrimonial house of PW1, he was not allowed to see the child. The further allegation is that the accused persons used to humiliate PW1 in front of others. But, except for a vague statement to that effect, what actually was done by the accused persons and what were the words uttered by them are not spoken to by PW1.
11. At the risk of repetition, one may say that the allegations are general in nature. All that is stated is that she was harassed and treated badly in the matrimonial house. PW1 had to admit that for the last several years, they are living separately and the present complaint which gave rise to the case is only after she received notice in the divorce petition. There is no reason given either by PW1 or PW2 for not filing a complaint regarding the cruelties before the receipt of notice in the divorce petition. It is also interesting to note that many of the statements made by PW1 at the time of evidence do not find a place in the complaint. In fact, PW1 says that she had signed a Crl. Appeal No.78/2005 7 complaint brought by the father.
12. It was in the above circumstances that the court below was inclined to hold that the evidence is insufficient to come to the conclusion that the offence had been made out. The lower court is also justified in its finding that even assuming that there has been isolated incidents of discord between PW1 and the 1st accused, that by themselves are not sufficient to constitute a crime under Section 498A IPC. As rightly noticed by the court below, only explanation (a) to Section 498A IPC can apply to the facts of the case. There was no evidence to the effect that there was any wilful conduct on the part of the accused persons as regards the allegations made against them.
13. This is a case where there is absolute want of evidence on the side of the prosecution to show that the accused persons had committed any cruel acts to PW1. On the other hand, it becomes evident that it was only as a retaliatory measure to the notice in the divorce petition which had been received by PW1 that the present complaint has been laid.
14. For the above reasons, the court below is fully justified Crl. Appeal No.78/2005 8 in coming to the conclusion that the offence had not been made out and the accused are entitled to acquittal. No grounds are made out to interfere with the order passed by the court below. In the result, this appeal is without merit and it is liable to the dismissed. I do so confirming the order passed by the court below. P.BHAVADASAN JUDGE smp