Kerala High Court
P.T.Mini vs M.G.Subhash on 22 January, 2010
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934
CRL.A.No. 161 of 2010 (A)
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CRLP.908/2009 DATED 22-01-2010
CC.415/2002 of J.M.F.C.,MATTANNUR
APPELLANT/PETITIONER/COMPLAINANT:
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P.T.MINI, D/O.THANKAPPAN PILLAI,
PUTHIYA VEETTIL HOUSE, MUNDAYAMPARAMBA.P.O, IRITTY
THALASSERY.
BY ADVS.SRI.V.V.ASOKAN
SRI.P.P.RAMACHANDRAN
RESPONDENTS/ACCUSED:
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1. M.G.SUBHASH, S/O.GOPINATHAN,
KALPANA HOUSE, ULIKKAL.P.O, THALASSERY.
2. GOPINATHAN,
RETIRED HEAD MASTER, KALPANA HOUSE, ULIKKAL.P.O
THALASSERY.
3. BHARGAVI,
RETIRED HEAD MISTRESS, W/O.GOPINATHAN, KALPANA HOUSE,
ULIKKAL.P.O, THALASSERY.
4. NISHAMOL, D/O.GOPINATHAN,
KALPANA HOUSE, ULIKKAL.P.O, THALASSERY.
5. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 018.
R1 TO 4 - BY ADV. SRI.C.P.PEETHAMBARAN
R5- BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 161 of 2010 (A)
APPENDIX
PETITIONER'S EXHIBIT:-
ANNEXURE A1 : COPY OF THE JUDGMENT IN O.P.No.190/2003
ON THE FILE OF THE FAMILY COURT, KANNUR.
ANNEXURE A2 : COPY OF THE JUDGMENT IN MAT APPEAL
No.284/2005 BY THIS HON'BLE COURT.
RESPONDENTS' EXHIBT : NIL.
True copy
P.A. to Judge
V.K.MOHANAN, J.
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Crl.A.No.161 of 2010
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Dated this the 08th day of November, 2012
JUDGMENT
The complainant in a prosecution for the offence punishable under Sections 420, 406 and 498-A read with Section 34 of the I.P.C. is the appellant herein as she is aggrieved by the judgment dated 26/08/2009 in C.C.No.415 of 2002 of the court of the Judicial First Class Magistrate, Mattannur by which the learned Magistrate acquitted all the four accused, under Section 248(1) of Cr.P.C., who faced the prosecution for the above offences.
2. The case of the complainant is that the marriage between the complainant and A1 took place on 26/03/2001 at Mahadeva Temple, Keezhur, as per the customs and and ceremonies prevailing among the Hindu Community and after the marriage the complainant was residing along with the accused in their house. According to the complainant at the time of the marriage complainant's parents gave 35 sovereign of gold Crl.A.No.161/2010 : 2 : ornaments. The further case of the complainant is that on the first day of marriage, during night, A1 revealed that he is impotent and he is incapable of performing sexual acts. Due to the impotency of A1, the marriage has not been consummated so far. It is also the case of the complainant in order to conceal his impotency, the accused physically and mentally harassed the complainant. It is also alleged that the accused physically and mentally harassed her and compelled her to assign 50 cents of property in the name of A1 and accused compelled her for artificial insemination. It is also stated in the complaint that accused obtained entire gold ornaments of the complainant on the first week of the marriage and when the complainant asked to return her gold ornaments the accused refused to give the same. It is also alleged that the accused physically and mentally harassed the complainant by demanding more dowry and also compelled her for artificial insemination. Thus according to the complainant the accused suppressed the Crl.A.No.161/2010 : 3 : fact that A1 is an impotent and contracted the marriage with the complainant and thereby cheated her and thus the accused has committed the offences punishable under Sections 420, 406 and 498-A read with Section 34 of the I.P.C.
3. On receiving the complaint after recording the sole statement of the complainant as well as the one of the witnesses, the court below took cognizance against the accused for the said offences and when summons issued the accused they appeared before the trial court. Thereafter PWs.1 to 4 were examined. PW.1 is the de facto complainant and PW.2 is the mother of PW.1, PW.3 is the younger brother of PW.1's father and PW.4 is the urologist attached to Medial college, Pariyaram. After hearing the prosecution as well as the defence the trial court framed a formal charge against the accused for the offences punishable under Sections 406, 420 and 498-A read with Section 34 of the I.P.C. and when the said charge read over and explained to the accused, they Crl.A.No.161/2010 : 4 : denied the same. Consequently the trial was continued during which PWs.1 to 4 were re-called and cross- examined. From the side of the complainant Exts.P1 to 3 documents were also marked. Exts.P1 and P2 are respectively the judgment and decree in O.P.No.190 of 2003 of the Family Court, Kannur. Ext.P3 is the judgment of this Court in MAT. Appeal No.284 of 2005. During 313 examination the circumstances and evidence brought during the prosecution evidence against the accused put to them and they denied the same. During the evidence of defence, DW.1 was examined and Exts.D1 and X1 were marked. DW.1 is the doctor who conducted the potency test of the accused and who issued Ext.D1, the potency certificate. Ext.X1 is the potency certificate issued by the Medical Board, Government Hospital, Kannur. On the basis of the pleading advanced by the complainant and defence and on the basis of the evidence on record, trial court has formulated five points for its consideration. Finally the learned Magistrate has found Crl.A.No.161/2010 : 5 : that the complainant has miserably failed to establish her case beyond reasonable doubt and consequently the accused are acquitted under Section 248(1) of Cr.P.C., which finding and order of acquittal are challenged in this appeal.
4. I have heard Sri.P.P.Ramachandran, learned counsel for the appellant and Sri.Peethambaran, learned counsel for the respondent.
5. The counsel for the appellant vehemently submitted that the evidence of PWs.1 and 4 established the offence against the accused under Section 420 of the I.P.C. It is also the submission of the counsel that Exts.P1 to P3 documents further proves the fact that A1-husband was impotent at the time of marriage but the trial court overlooking the above evidence of PW.1 and Exts.P1 to P3 found that no offence under Section 420 of I.P.C. is attracted and therefore according to the learned counsel, the said finding is liable to be interfered with. It is also the submission of the learned counsel that the Crl.A.No.161/2010 : 6 : complainant has established the offence under Section 406 of I.PC. against the accused through the evidence of PW.1 regarding the entrustment of the ornaments of 35 sovereign. But the learned Magistrate overlooked the above evidence especially when the defence has not denied the claim of PW.1 with respect to the dowry as well as the ornaments handed over to the accused. It is the further submission of the learned counsel that it is practically impossible to have independent evidence other than the evidence of wife in the present case with respect to the offence under Section 498-A of the I.P.C. According to the learned counsel PW.1 when examined, had deposed that against her the accused meted out harassment but the learned Magistrate failed to appreciate those evidence and came into a wrong conclusion. Therefore, the learned counsel for the appellant submitted that the finding of the court below is absolutely incorrect and illegal and liable to be interfered with and liable to be set aside and the order of acquittal Crl.A.No.161/2010 : 7 : has to be reversed and the accused are liable to be convicted. In support of his submission learned counsel placed reliance on the decisions in Karnidan Sarda and another Vs. Sailaja Kanta Mitra [A.I.R. 1940 Patna page 683] and Velu Pillai Padakalingam vs. Paramanandam Yesudasan [1953KLT page 587].
6. Shri.Peethambaran, learned counsel for the respondent after inviting me through the deposition of PW.1 and the evidence of PW.4 and evidence of DW.1 and Exts.D1 and Ext.X1 document, submitted that the complainant has miserably failed to prove the essential ingredients of Sections 420, 406 and 498-A of I.P.C., the offences which are alleged against the accused and therefore the trial court is fully justified in its finding and acquitting the accused. Thus, according to the learned counsel the appellant has miserably failed to make out any ground to interfere with the finding of the court below and the order of acquittal.
Crl.A.No.161/2010 : 8 :
7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondent. I have perused the judgment of the trial court carefully and scrutinized the evidence and materials on record.
8. In the light of the arguments and rival contentions advanced by the learned counsel for the appellant and the respondent and in the light of the evidence and materials on record particularly in view of the finding of the court below the question that emerges for consideration is whether the trial court is justified in its finding and acquitting the accused and further whether the appellant has succeeded in making out any case to interfere with the finding of the court below and to reverse the order of acquittal recorded in favour of the accused.
9. I do not propose to repeat the evidence and materials referred to by the learned Magistrate of the trial court in the impugned judgment. Before going to the Crl.A.No.161/2010 : 9 : details of the case it is beneficial to refer to certain undisputed facts. The marriage between the complainant and the first accused has taken place on 26/03/2001 and thereafter the marital relationship continued only for seven months. Before the filing of the present private complaint, the complainant has already approached the Family Court and obtained Exts.P1 judgment and P2 decree which are confirmed by this Court as per Ext.P3 judgment.
10. The first offence alleged against the respondent is under Section 420 of I.P.C. The case of the complainant is that at the time of marriage the first accused and his relative suppressed the fact that the first accused was impotent and concealing the said fact the first accused entered into a contract of marriage with the complainant. Therefore the accused has committed offence punishable under Section 420 of I.P.C. According to me, in order to establish an offence under Section 420 of I.P.C. in the present case the complainant is expected Crl.A.No.161/2010 : 10 : to prove that the first accused and the other accused were having sufficient knowledge that the first accused was impotent before contracting the marriage with the complainant and the said fact has been suppressed by the accused. Before considering the above question, it is absolutely inevitable to find out whether the first accused is an impotent either at the time of the marriage or before it. To prove the above facts the only evidence available on record from the part of the complainant is that of the oral testimony of PW.1 and the evidence of PW.4. The complainant wanted a conviction against the accused including A1, on the ground that the marriage was not consummated since the first accused has admitted that he is an impotent as he disclosed the same to the complainant on the first night after the marriage. But the trial court has found that after the marriage, the complainant PW.1 did not disclose the above fact to anybody and no step was taken during their co- habitation for seven months. It is to be noted that the Crl.A.No.161/2010 : 11 : PW.1 complainant deposed before the court during the trial of the case, after her institution of case for divorce in the Family Court. So, at the time of giving evidence by PW.1 she was against her husband as well as the in-laws. The complainant, when examined as PW.1, stated that the first accused disclosed to her on the first night about his impotency. According to me, whether the above evidence of PW.1 can be believed without any corroboration. As I indicated earlier to corroborate the evidence of PW.1, she had examined PW.4 who is the then urologist attached to the Medical College Hospital, Pariyaram. When Pw.4 was examined, he had stated that, even though the genital organs are normal, the person may be impotent due to various reasons. The learned Magistrate has also observed that PW.4 further deposed that the assertion of non-consummation of marriage is a positive indication of impotency. Thus it can be seen that the evidence of PW.4 is in no way helpful to the complainant to prove that A1 is impotent. Harving upon Exts.P1 to P3 documents, the Crl.A.No.161/2010 : 12 : learned counsel for the appellant submitted that the findings in those documents are supporting the evidence of PW.1, but the learned Magistrate failed to consider those documents in its proper perspective. I am unable to sustain the above contention. It is crystal clear that Ext.P1 verdict and consequently Ext.P2 decree was pronounced by the Family Court simply by drawing adverse inference against the first accused who was the respondent therein as he failed to appear for medical examination. So, absolutely there is no finding in Exts.P1 and P2 or P3, with the support of materials and evidence to the effect that PW.1 is impotent. It is also relevant to note that the finding of the civil court or the judgments of the civil court are relevant and attracted in the criminal cases only if those documents are relevant under Section 40 to 43 of the Indian Evidence Act. As I indicated earlier, Exts.P1 to P3 judgments and decree were passed only by drawing an adverse inference and not on the basis of the factual finding supported by legal evidence to Crl.A.No.161/2010 : 13 : the effect that A1 in the present case who is the respondent therein was impotent. In view of the decision reported in Iqbal Singh Marwah Vs. Meenakshi Marwah [2005(4)SCC 370], particularly in paragraph 32 the appellate court is of the opinion that civil cases are decided on the basis of preponderance of evidence, whereas in criminal cases it is the bounden duty of the prosecution to prove its case beyond reasonable doubt against the accused. Thus there is no legal and acceptable evidence to show that A1 was impotent either before the time of marriage or after it, except the interested version of PW.1.
11. But it is pertinent to note that in the present case, when the complainant failed to produce positive evidence to prove that A1/husband is impotent, the 1st accused himself volunteered to adduce evidence to show that he is not impotent. Though A1 was not ready to undergo medical examination when the civil matter was pending before the Family Court, in the criminal cases Crl.A.No.161/2010 : 14 : the accused was examined as DW.1 and marked Ext.D1. Ext.D1 is the potency certificate with respect to A1 issued by DW.1. According to DW.1 there is nothing to suggest that the person-namely A1 is incapable of performing sexual act. On comparison of above evidence of DW.1 supported by Ext.D1 it can be seen that defence evidence itself is sufficient to contradict the evidence given by PW.1 and evidence of PW.4 which is not based upon any particular and scientific test conducted by him. It is also relevant to note that on the basis of the contention raised by the complainant against the evidence of DW.1 and Ext.D1, the accused has filed a petition before the trial court stating that he is ready and willing to undergo medical examination before the Medical Board, Kannur and the learned Magistrate after considering the said application allowed the same and accordingly A1 underwent medical examination by the Medical Board on 24/03/2008. Thus after a detailed examination of the first accused with respect to his potency, the medical board Crl.A.No.161/2010 : 15 : issued a potency certificate which marked as Ext.X1. In Ext.X1 medical board opined that there is nothing to suggest that the person-namely the accused is incapable of performing his sexual act. So with respect to the offence under Section 420 of the I.P.C., when the complainant has miserably failed to prove that the accused A1 is impotent, the evidence adduced from the side of the defence proves otherwise. It is on the basis of the above facts and evidence and materials on record that the trial court came into a conclusion except the oral evidence of PW.1 there is no evidence that A1 is impotent. According to me the above finding of the trial court is fully justified and supported by evidence and materials on record.
12. Another offence alleged by the complainant against the accused is 406 of I.P.C. In the complaint there is no specific or detailed allegation or averments regarding the ornaments alleged to have given to the accused as dowry but what stated in the complaint is that Crl.A.No.161/2010 : 16 : at the time of marriage, parents of complainant have given 35 sovereign of gold ornaments. During the evidence of PW.1, she stated thus:
35 .
Further stated that:
.
It is the further deposition that:
1 3 . .
But in the Chief examination PW.1 has stated that:
.
Further during the cross-examination of PW.1, she has stated that:
4 . 28 . 2001 30 . 1 2 .
.
During the re-examination, she had stated that:
.
So with respect to the dowry and gold ornaments there is no specific pleadings in the complaint and the Crl.A.No.161/2010 : 17 : complainant is not consistent in her deposition, when she was examined as PW.1. So the evidence of PW.1 with respect to the gold ornaments and the dowry contained contradictions. The trend of cross-examination on PW.1 shows that the accused has not admitted the claim of PW.1 with respect to the dowry and the gold ornaments, whereas the same suggestive that they are denying it. As I indicated earlier with respect to the dowry and giving of ornaments there is no specific and detailed pleadings in the complaint and no evidence adduced by PW.1 during her examination in this regard. The deposition of PW.1 during the chief examination as well as during cross- examination has to be examined in the background that she had filed the present private complaint against the accused after having approached the Family Court for divorce. Thus on examination of the evidence of PW.1 in the above backdrop, according to me, no evidentiary value can be given, rightly done by the learned Magistrate.
Crl.A.No.161/2010 : 18 :
13. With regard to the offence under Section 498-A of I.P.C. the learned Magistrate has observed that there is no independent evidence. The learned counsel for the appellant submitted that it is practically impossible to produce direct evidence with respect to the incident being taken place inside the dwelling house. Still then it is up to the prosecution to prove the allegation beyond reasonable doubt. In the absence of direct evidence, the prosecution can prove the allegation, if the same are true, by adducing evidence connected with the circumstances which point towards the guilt of the accused. But in the present case no independent evidence or materials are produced. It is pertinent to note that as rightly observed by the learned Magistrate after the marriage, even though PW.1 has stated that the accused disclosed on the first night about his impotency, no step is seen taken by PW.1 against the accused, but she continued to enjoy the relationship with the accused and they lived as husband and wife for seven months. She did Crl.A.No.161/2010 : 19 : not disclose the facts with respect to the so called impotency of A1 and the harassment to any of her relatives at the relevant point of time. During the period of seven months after the marriage PW.1 lived along with the accused without any complaint and she had stayed along with the accused in the hotel and visited the relatives of both PW.1 and A1. No complaint of harassment is raised at any point of time during the seven months from the date of their marriage. So the deposition of PW.1, after her filing of divorce petition before the Family Court, can be treated as only an interested version especially when the above evidence of PW.1 is not supported by any independent evidence or any relevant circumstances. So it is also relevant to note that, even if the evidence of PW.1 is accepted as true and correct, the same are not sufficient to constitute the essential ingredients of Section 498-A of the I.P.C. The vague allegation that the accused demanded more money towards dowry or the claim of PW.1 that she was Crl.A.No.161/2010 : 20 : subjected to harassment are not sufficient to establish the offence under Section 498 of the I.P.C.
14. Thus on examination of the finding of the court below, it can be seen that the learned Magistrate refused to accept the case of the complainant and disbelieve her by assigning cogent and sufficient reasons which are supported by available evidence and materials on record. Therefore, it cannot be said that the judgment of the trial court is perverse or illegal. The appellant has also miserably failed to point out that the learned Magistrate has over looked any evidence and materials which are in favour of the complainant to prove its allegations against the accused. Thus the appellant failed to make out any case to interfere with the finding of the court below.
15. In a recent decision of the Apex Court reported in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012(4) Supreme 72), the Hon'ble Apex Court has held that, "In exceptional cases where there are compelling circumstances and the judgment under appeal is Crl.A.No.161/2010 : 21 : found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence."
Thus, on examination of the facts and circumstances involved in the present case and in the light of the dictum laid down by the Apex Court in the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails.
Hence there is no merit in the above appeal and accordingly the same is dismissed.
Sd/-
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge