Kerala High Court
Udayakumar vs State Of Kerala on 7 February, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY,THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936
Crl.Rev.Pet.No. 780 of 2003 ( )
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CRL.A.NO. 106/2001 OF SESSIONS COURT, MANJERI DATED 07-02-2003
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CC.NO. 156/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
MALAPPURAM DATED 04-05-2001
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REVISION PETITIONER/APPELLANT/ACCUSED :
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UDAYAKUMAR,S/O.SREEDHARAN,
KATTILPARAMBA HOUSE, ARIYALLUR AMSOM AND DESOM,
PARAPPANANGADI, MALAPPURAM DISTRICT.
BY ADV. SRI.MANJERI SUNDERRAJ
RESPONDENT/RESPONDENT/COMPLAINANT & STATE :
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STATE OF KERALA,
REP. PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT.MADHU BEN.M.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 18-02-2014, THE COURT ON 25-03-2014 PASSED THE FOLLOWING:
sts
K. RAMAKRISHNAN, J.
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Crl.R.P.No.780 of 2003
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Dated this the 25th day of March, 2014.
O R D E R
The first accused in C.C.No.156/1997 on the file of the Judicial First Class Magistrate Court, Malappuram is the petitioner herein.
2. The petitioner along with his mother and sister were charge sheeted by the Circle Inspector of Police, Tirur in Crime No.155/1994 of Parappanangadi police station alleging the offences under Section 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the Code'). The case was originated on the basis of Ext.P3 private complaint filed by PW1, the wife of the petitioner, before the Judicial First Class Magistrate Court, Malappuram, which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure and on receipt of the same, PW6 Head Constable attached to that police station registered Ext.P7 First Information Report as Crime No.155/1994 of Parappanangadi police station against the above three persons under Section 498A read with Section 34 of the Code. The investigation in Crl.R.P.No.780 of 2003 2 this case was undertaken by PW7, the Circle Inspector of Police. He went to the place of occurrence and prepared Ext.P6 scene mahazer in the presence of PW5 and another. He seized Ext.P4 wedding photo and Exts.P1 and P2 letters as per Ext.P5 seizure mahazer. He questioned the witnesses and recorded their statements. After completion of the investigation, he submitted final report before the Judicial First Class Magistrate Court, Malappuram and that court has taken cognizance of the case as C.C.No.156/1997 against the above three persons for the offence under Section 498 A read with Section 34 of the Code.
3. When the accused appeared before the court below, after hearing the Assistant Public Prosecutor and the counsel for the accused, the learned Magistrate framed charge against the accused persons under Section 498A read with Section 34 of the Code and the same was read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 7 were examined and Exts.P1 to P7 were marked on the side of the prosecution. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in Crl.R.P.No.780 of 2003 3 the prosecution evidence. They have further stated that they have not committed any offence and they are innocent of the same. In order to prove the defence case, the first accused, the petitioner herein, was examined as DW1 and Exts.D1 and D2 were marked on their side. After hearing the arguments of both sides and after considering the evidence, the learned Magistrate found the accused 2 and 3 not guilty of the offences alleged and acquitted them of the charge under Section 248 (1) of the Criminal Procedure Code. But, the learned Magistrate found the petitioner guilty under Section 498A of the Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years. Aggrieved by the order of conviction and sentence passed by the court below, the petitioner herein filed Crl.A.No.106/2001 before the Sessions Court, Manjeri and dissatisfied with the order of acquittal of accused 2 and 3, the defacto complainant filed Crl.R.P.No.34/2001 before the same court. The learned Sessions Judge heard both the criminal appeal and the criminal revision petition and dismissed the same by a common judgment confirming the order of conviction and sentence passed against the petitioner and acquittal passed against accused Nos.2 and Crl.R.P.No.780 of 2003 4
3. Dissatisfied with the order of the Sessions Judge, the petitioner has filed this revision petition.
4. Heard the counsel for the revision petitioner and the learned Public Prosecutor.
5. The counsel for the revision petitioner argued that the evidence adduced on the side of the prosecution is not sufficient to attract the offence under Section 498A of the Code against the petitioner. Further, the lower court had given much reliance on Exts.P1 and P2 letters sent by the petitioner to his mother in the address of his sister in which certain mention had been made regarding the sale of the property belonging to the defacto complainant. But, the courts below failed to note the fact that thereafter the father and uncle of the defacto complainant had sent Exts.D1 and D2 letters, which will go to show that there was no demand as such of the property for which the alleged cruelty was alleged was not there and in fact they were happy about the transaction and even supported the petitioner to go on with the construction of the residential house at Ranipet. Further, in fact, the sale of the property was done by PW2, the father of the defacto complainant, and the consideration was obtained by him and there was no role for Crl.R.P.No.780 of 2003 5 the petitioner for the same. The alleged purchaser namely Abdulla Koya, though cited as a witness, was not examined by the prosecution. That will go to show that the petitioner has no role in the sale of the property. Further, the details of alleged incidents of cruelty as narrated by PW1 were not mentioned in the complaint or before the police. They were embellishment and improvements made by PW1 before court. So, much value should not have been given by the courts below on that evidence. If those evidence is removed, then even assuming that the prosecution case is true, then that will only amount to demanding money for construction of house for their residence which was in fact admitted by PW1 and her father and they supported the petitioner for that purpose and that will not amount to demand for dowry or cruelty as alleged in the section. So, according to the learned counsel, the courts below were not justified in convicting the appellant for the offence under Section 498 A of the Code and he is entitled to get acquittal of the charge levelled against him giving him the benefit of doubt.
6. On the other hand, the learned Public Prosecutor argued that the evidence of PWs 1, 2 and 4 coupled with Exts.P1 and Crl.R.P.No.780 of 2003 6 P2 will go to show that the petitioner had harassed the defacto complainant demanding property and treated her cruelly both physically and mentally for that purpose. PWs 1 and 2 have explained the circumstances as well. Further PW2 had stated that he had agreed for co-operating with the sale of the property because he wanted the life of his daughter to be happy with the petitioner and he had no role in the sale of the property and the sale was done by the petitioner and he had not received the money as well. So, according to the learned Public Prosecutor, the courts below were perfectly justified in convicting the appellant for the offence alleged. Further, both the courts below, being the courts on fact, have analysed the evidence and concurrently found that the petitioner had committed the offence and being a revisional court, this Court is not expected to interfere with the finding arrived at by the courts below on evidence unless the appreciation is completely perverse and against law.
7. It is an admitted fact that the petitioner herein married PW1 on 22.1.1990 and according to the prosecution, 35 soverings of gold ornaments and Rs.25,000/- cash was given at the time of marriage and that was entrusted to the petitioner. Crl.R.P.No.780 of 2003 7 It is also an admitted fact that at the time of marriage, the petitioner was working at Ranipet and after some days of stay in the house of the petitioner at Parappanangadi, she was taken to his work place and they resided there together for some time. Even during that time, the life was not happy and PW1 came back to her house and the petitioner sent a notice requesting her to come and after mediation, they started living together at Ranipet in a rented house again. Even thereafter, according to the prosecution, the ill treatment continued and the petitioner was demanding the defacto complainant to get more money and also wanted property. It was an admitted fact that PW2, the father of PW1, had obtained a property in the name of PW1 having an extent of 30 cents. According to the prosecution, that irritated the petitioner. Thereafter the gravity of the ill treatment increased and in order to avoid the ill treatment, PW1 had assigned 8 cents of land out of the same in favour of the petitioner. The fact of assignment of 8 cents in favour of the petitioner by PW1 was an admitted fact. According to the prosecution, the ill treatment continued for assignment of the remaining portion as well. Thereafter when the ill treatment increased and due to the pressure exerted on PW1, Crl.R.P.No.780 of 2003 8 according to PW1, she had executed assignment deed in respect of the balance property also and the amount was received by the petitioner and that was misappropriated by him. Till that document was executed, she was even confined in a room in their Tharavad house and only after she agreed to assign the property, she was released from the room in which she was confined and thereafter she was left in the house of her parents and he did not take her back later. According to PW1, the petitioner had remarried and he is now living with another women. But the allegations of cruelty alleged was denied by the petitioner.
8. It is settled law that in order to attract the offence under Section 498A of the Code, the prosecution must prove the cruelty as defined under that section and any other cruelty will not be sufficient to attract such an offence. Section 498A of the Code reads as follows:
498A. Husband or relative of husband of a woman subjecting her to cruelty:-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished within imprisonment for a term which may extend to three years and shall also be liable Crl.R.P.No.780 of 2003 9 to fine.
Explanation:- For the purpose of this section, "cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such 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 failure by her or any person related to her to meet such demand.]
9. In the decision reported in Manju Ram Kalita v. State of Assam (2009 (13) SCC 330), after relying on the decision reported in Mohd. Hoshan v. State of A.P (2002 (7) SCC 414), Raj Rani v. State (Delhi Admn) (2000) 10 SCC
662), Sushil Kumar Sharma v. Union of India (2005 (6) SCC 281) and Girdhar Shankar Tawade v. State of Maharashtra (2002 (5) SCC 177), the Supreme Court has Crl.R.P.No.780 of 2003 10 opined in paragraphs 21 of the judgment as follows:
"Cruelty for the purpose of Section 498-A IPC is to be established in the context of Section 498 -A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as "cruelty" to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty".
10. The same view has been reiterated in the decision reported in Shakson Belthissor v. State of Kerala and Anr. (JT 2009 (8) SC 617) and Gopal v. State of Rajasthan (JT 2009 (2) SC 419). So with this principles in mind, the case in hand to be considered.
11. In order to prove the case of the prosecution, the prosecution relied on the evidence of PWs 1, 2 and 4 and also Crl.R.P.No.780 of 2003 11 Exts.P1 and P2 letters sent by the petitioner. Sending of Exts.P1 and P2 letters was admitted by the first accused namely the petitioner. According to him, he had sent those letters not in the way it was intended or understood, but those letters were written by him under his mental tension caused on account of the conduct of the defacto complainant. He had relied on Exts.D1 and D2 letters which were admittedly sent after Exts.P1 and P2 to show that there was no pressure exerted from his side as contended by the prosecution. In Ext.P1, it is stated as follows:
" .
.
.
. .
. .
.
12. In Ext.P2 it was mentioned that:
.
.
13. From this, it cannot be believed that those statements Crl.R.P.No.780 of 2003 12 were made innocently by DW1, the first accused, as claimed by him. If really he does not want to live with PW1 on account of her conduct, then there is no necessity for insisting the property to be obtained from the father of PW1. Further, the evidence of PW1 will go to show that he was persistently harassing her for getting the property transferred in his name. He was not even satisfied by transferring 8 cents of land in his favour earlier and he wanted the entire property to be transferred in his name and for that purpose she was continuously and persistently harassed both physically and mentally by him. She was even go to the extent of saying that he was not having sexual intercourse with her or performing the obligation of an affectionate husband towards her on account of this. She had also stated that she was even confined in a room without giving food till she agreed for assigning the balance property in favour of the petitioner and accordingly she was taken to the registrar's office and assignment deed was executed in his name. Though she was cross examined at length, nothing was brought out to discredit her evidence regarding this aspect. So, under the circumstances, the courts below were perfectly justified in coming to the Crl.R.P.No.780 of 2003 13 conclusion that Exts.P1 and P2 were not sent by the petitioner under mental distress which he was undergoing on account of the conduct of PW1 as claimed by him but it was really intended in the manner in which it was written and they were harassing PW1 for getting the property in his name.
14. The defence relied on Exts.D1 and D2 letters sent by PWs 2 and 4. PW2, who is the father of PW1, had categorically stated that he had agreed to sell the property and co-operate with the petitioner only because he wanted somehow to make the living of PW1 with the petitioner happy. Further, he had also deposed that PW1 had told him about the cruelty met by her in the hands of the petitioner insisting for more money and also for transferring the property in his name. He had also stated that he had only written Ext.D1 letter to avoid disharmony in the family and they will be happy if the house was constructed and with that in mind he had mentioned those things and agreed to help the petitioner. He had also deposed that the petitioner had even told him when he came to know about the sale of the property without his consent and asked about the money that he wanted only money and property not his daughter and get back the money by whatever means he Crl.R.P.No.780 of 2003 14 wanted. PW4 also to some extent supported the case of PWs 1 and 2. The evidence of DW1 is not convincing at all.
15. It is true that Abdulla Koya to him the property was sold was not examined. But the investigating officer had stated that he could not question him because he went abroad and he was not available for interrogation. Both PWs 1 and 2 have categorically stated that it was the petitioner who had made all arrangements for sale of the property and appropriated the amount and if the petitioner had case contra then, it is for him to examine Abdulla Koya to prove that the transaction was done by PW2 on behalf of PW1 and he had no role in the execution of the documents especially when PWs1 and 2 have categorically stated that they did not know the said Abdulla Koya and have not received the amount and it was the petitioner who had received the amount. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the petitioner had treated PW1 cruelly as defined under Section 498A of the Code for the purpose of getting the property and sale of the property and appropriated the amount for his purpose and rightly convicted the petitioner for the offence under section 498A of the Code and there is no reason Crl.R.P.No.780 of 2003 15 made out for interfering with the concurrent findings of the courts below on this aspect.
16. As regards the sentence is concerned, the counsel for the petitioner submitted that the sentence imposed is harsh. The appellant was sentenced to undergo rigorous imprisonment for two years. The courts below were perfectly justified in not invoking the provisions of the Probation of Offenders Act in this case. It is in a way admitted that the relationship was strained and they are living separately for quite long time now. It is true that the intention of the legislature in enacting special provision like this is to avoid cruelty in the name of dowry and provide severe sentence if it is found proved. But at the same time, the circumstances of each case have to be considered for this purpose as well. Considering the fact that they are now living separately for quite long time and even according to PW1, the petitioner had married another lady and there is a child in that wedlock, this Court feels that, that can be taken as a mitigating circumstance to show some leniency on the question of sentence. So considering the circumstances, sentencing the accused to undergo rigorous imprisonment for six months will be sufficient and that will meet the ends of Crl.R.P.No.780 of 2003 16 justice. So the sentence of two years rigorous imprisonment imposed by the court below is set aside and the same is modified as follows:
The petitioner is sentenced to undergo rigorous imprisonment for six months. While confirming the conviction of the petitioner under section 498 A of the Code, the sentence imposed by the courts below is modified and reduced to six months rigorous imprisonment.
With the above modification of the sentence alone, this revision petition is allowed in part.
Office is directed to communicate this judgment to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge Crl.R.P.No.780 of 2003 17