Kerala High Court
Anil Kumar vs State Of Kerala on 3 October, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
Crl.Rev.Pet.No. 1687 of 2006
AGAINST THE ORDER/JUDGMENT IN CRA 156/2001 of I ADDL.D.C. & SESSION
JUDGE KOLLAM DATED 24-03-2006
AGAINST THE ORDER/JUDGMENT IN CC 322/1996 of J.M.F.C. - I,
KARUNAGAPPALLY
REVISION PETITIONER/S:
1 ANIL KUMAR
S/O.SHANMUGHAM,, SADHUPURATH VEEDU,FROM NEDIYATH VEEDU,
MARUTHOORKULANGARA SOUTH, AYANIVELIKULANGARA.
2 JAMEELA DO.SHANMUGHAM
---DO ---
3 SAROJAM DO.VELU
---DO ---
BY ADV. SRI.K.A.SALIL NARAYANAN
RESPONDENT/S:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV. PP M.K.PUSPHALATHA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11.07.2018, ALONG WITH Crl.Rev.Pet.1618/2006, THE COURT
ON 3/10/2018 PASSED THE FOLLOWING:
Crl.R.P..1687/2006 2
COMMON ORDER
These revisions arise from the judgment in CC No.322/96 of the court of JFCM, Karunagappally, for offences punishable under section 498 (A) IPC, as confirmed in Criminal Appeal No.156/2001 of the First Additional Sessions Judge, Ernakulam.
2. Cr.R.P.No.1687/2006 is filed by accused Nos. 1,3 and 4 and Cr.R.P.No.1618/2006 is preferred by the second accused.
3. The first accused is the husband of the defacto complainant. The third accused is his sister and the second accused is her husband. Fourth accused is the mother of the first and third accused. First accused married the defacto complainant on 16/10/1995. According to the prosecution, at the time of marriage, gold ornaments, cash and other movable items were entrusted. The allegation of the defacto complainant was that, on 17/10/1995, the first and second accused forcibly removed the gold ornaments worn by her. It was stated that, the second accused had a debt of Three Lakhs and the first accused had married the defacto complainant to discharge that debt. It was alleged that on 17/11/1995, the third and fourth accused forcefuly removed the remaining gold ornaments. There is a further allegation that, on that day she was beaten with stick by the first accused and the 4th accused slapped on Crl.R.P..1687/2006 3 her cheek. She further alleged that, all the gold ornaments were misappropriated by the accused. On 17/11/1995 itself FIS was laid. Crime was registered and after investigation, final report was laid. Accused faced trial in CC No.322/1996. Trial Court, after evaluation of the entire evidence, by its judgment found all the accused guilty, convicted and sentenced to undergo RI for one year and also to pay an amount of Rs.25,000/- as compensation to PW1. This was challenged in appeal. The appellate Court on an re-appraisal of the entire evidence confirmed the conviction and sentence.
4. Aggrieved by the concurrent findings, the accused have preferred these revisions. Heard and examined the records.
5. Contention of the learned counsel for the revision petitioners was that, none of the ingredients constituting an offence under section 498A as explained by the Supreme Court in Undavali Narayana Rao v. State of A.P.(2009 KHC 860) was brought out. It was contended that, consequently the courts were not justified in rendering conviction and sentence. It was contended that, courts below committed material irregularity in the appreciation of the evidence and convicted the accused merely based on surmises. It was contended that, evidence relied on by the court below did not establish the offence alleged. It was hence, contended that conviction was liable to be set aside.
6. It seems that, the courts below essentially relied on the Crl.R.P..1687/2006 4 evidence of PW1 the victim, PW2, the sister of PW1, PW3 the father of PW1 and two neighbours who were PWs 5 and 6. According to the court below, the versions spoken by PW1 received its credence from the limited testimonies of PWs 2,3,5 and 6. They also received support from the evidence of PW12, the Assistant Surgeon of Taluk Headquarters Hospital, who had examined the defacto complainant on 17/11/1995 at 10 a.m. and issued Ext.P8 wound certificate. Ext.P8 evidences that, there were four minor injuries on the body of PW1.
7. It is pertinent to note that, in Ext.P1 FIS, PW1 had stated that gold ornaments were removed on 17/10/1995 by Accused 1,2 and 3. There is a general allegation that, accused harassed her on several days demanding dowry. There is a further allegation that, on 17/11/1995 at 6.p.m., accused 1,3 and 4 forcefully removed the gold ornaments. When she resisted, the first accused allegedly beat her with a rod. The 4th accused allegedly slapped on the cheek of PW1. On the other hand, in wound certificate , the version was that, the husband and mother in law had beaten her.
8. Ext.P1 is a copy of O.P.(HMA) No. 105/1996 filed by the wife on 20/5/1996. In that, her version was that on 17/10/1995 three gold chains were removed from the accused. On 18/10/1995, accused Nos. 1,2 and 3 removed the balance gold ornaments. On 17/11/1995, the first accused along with the family members had beaten her. Crl.R.P..1687/2006 5
9. However, PW 1 in her evidence asserted that on 17/10/1995, accused Nos. 1,2 and 3 had removed 14 gold bangles from her body and all the accused harassed her. She asserted that on 17/11/1995, accused 1,3 and 4 had removed her gold ornaments. She further asserted that, when she opposed it, she was beaten with lati by all the accused and the 4th accused slapped on her cheek. She gone out of the house and sought the help of the neighbours also. However, in the cross examination, her version was that, on 17/10/1995, husband had asked for removal of the gold ornaments. She agreed and removed it. He had assured to keep it in safe custody. This version clearly negatives all other contra version to the effect that all the accused or anyone among them have by force removed the gold ornaments on that day. It is pertinent to note that Pws 2 and 3 have no direct information regarding the entire incident. Hence, the alleged harassment is sought to be established by the oral testimony of PW1 alone. The specific assertion of PW1 in cross examination that, she had voluntarily removed the gold ornaments to be kept in safe custody, was eschewed by the court below leading to the wrong conclusion that on 17/10/1995 she was harassed by all the accused. Even though it was stated by PW1 that, 4 th accused slapped on her cheek on 17/11/1995, there is no corresponding injury on her cheek. However, regarding the unfortunate incident that happened on that day leading to injuries on her body, sufficient materials in the form of Crl.R.P..1687/2006 6 medical evidence and that of limited version of PWs5 and 6 are available. PW5 in his evidence asserted that, PW1 was seen rushing from her matrimonial house stating that she was being beaten. PW6 has also seen accused in the house. When he interfered, the third accused directed her not to interfere. The above facts clearly show that the limited reliable evidence narrows down to injuries inflicted on the body of PW1 on 17/11/1995. In the absence of anything to clinch accused 2,3 and 4 accused regarding the first incident, I feel that they are entitled for the benefit of doubt. Regarding the complicity of the 4th accused in relation to the incident on 17/11/1995, there is no convincing evidence.
10. Considering the above crucial facts, which were missed by the court below, I feel that, the only available materials are in relation to the first accused, as having beaten victim on 17/11/1995. Hence, to this extent, it can only be held that there is absolutely no proof before the court below to arrive at a conclusion that accused Nos.2,3 and 4 had committed offence punishable under section 498(A). To that extent, conviction against them is liable to be set aside .
11. However, there is evidence regarding the complicity of the first accused in the incident on 17/11/1995. Hence, his conviction for offence under section 498 is liable to be confirmed. However, one year imprisonment punishment imposed by the court below appear Crl.R.P..1687/2006 7 to be on the higher side. I feel that SI for one month with a direction to pay compensation of Rs.10,000/- will serve the interest of justice.
12. Accordingly, Crl.R.P.No. 1618/2006 is liable to be allowed setting aside the conviction and sentence imposed on the second accused. Second accused is acquitted.
Crl.R.P.No.1687/2006 is liable to be allowed in part, confirming the conviction of the first accused alone. Accused Nos. 3 and 4 are acquitted. Conviction of the first accused under section 498A is confirmed and the sentence is modified to undergo SI for one month and to pay a compensation of Rs.10,000/-(Rupees Ten Thousand only). Accused Nos. 2,3 and 4 are acquitted and their bail bonds are cancelled.
Sd/-
SUNIL THOMAS JUDGE