Kerala High Court
Biju vs State Of Kerala on 31 January, 2017
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 31ST DAY OF JANUARY 2017/11TH MAGHA, 1938
Crl.Rev.Pet.No. 675 of 2013 ()
-------------------------------
CRA 95/2011 of ADDL. SESSIONS COURT, ALAPPUZHA
CC 172/2007 of J.M.F.C.-II,ALAPPUZHA
REVISION PETITIONER(S)/REVISION PETITIONER/1ST ACCUSED:
--------------------------------------------------------------------------------------
BIJU,
S/O. APPUKUTTAN, VILAYIL PUTHEN VEEDU, WARD NO.11,
KUMARAPURAM PANCHAYATH.
BY ADV. SRI.K.R.SUNIL
RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
-----------------------------------------------------------------
STATE OF KERALA,
REP. THE SUB INSPECTOR OF POLICE, NORTH POLICE STATION,
ALAPPUZHA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR, SRI. C. K. PRASAD
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
31-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
- - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - -
Crl.R.P. No.675 of 2013
- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -
Dated this the 31st day of January 2017
O R D E R
The courts below convicted and sentenced the revision petitioner under Section 420 I.P.C. concurrently.
2. The revision petitioner consented to marry PW3, who is the daughter of PW2 and in connection with the said marriage, the engagement was conducted on 16.9.2004. The marriage was proposed to be solemnised on 2.2.2005. While so, PW2 received an intimation that the revision petitioner was having a wife living. Therefore, PW2 and PW3 withdrew from the marriage. It is alleged that the revision petitioner and the other accused conducted the Crl.R.P.675/2013 : 2 : engagement ceremony concealing the former marriage of the revision petitioner, in furtherance of the common intention of the revision petitioner and the other accused to make illegal gain to them and illegal loss to PW2 and his family. On the said allegation, charge was framed against the accused for the offences under Sections 495 and 420 read with Section 34 I.P.C.
3. Before the trial court, PW1 to PW6 were examined and Exts.P1 to P14 were marked for the prosecution. Ext.D1 was marked for the defence.
4. Heard.
5. The courts below, after evaluating the evidence, acquitted the revision petitioner for the offence under Section 495 I.P.C. The other accused persons were Crl.R.P.675/2013 : 3 : acquitted by the trial court of all the offences charge against them. However, the revision petitioner was found guilty by the courts below under Section 420 I.P.C. and convicted him thereunder.
6. The learned counsel for the revision petitioner has argued that since the revision petitioner was acquitted for the offence under section 495 I.P.C., the offence under Section 420 I.P.C. is not attracted against the revision petitioner, as the offence under Section 420 I.P.C. in this case forms part and parcel of the offence under Section 495 I.P.C. and consequently, the conviction and sentence passed by the courts below under Section 420 I.P.C. cannot be sustained. Both the courts below found that there is no evidence to prove that the appellant married CW8 Ambika (not examined), as alleged by PW2 and PW3. I have gone Crl.R.P.675/2013 : 4 : through the evidence on record and I find that there is no material before the court to prove that there existed a marriage between the revision petitioner and CW8 Ambika.
7. The prosecution allegation is that the revision petitioner cheated PW2 and his family by instigating PW2 and PW3 for the marriage of PW3 with the revision petitioner, concealing the former marriage of the revision petitioner. It is in the evidence of PW2 and PW3 that they retreated from the marriage after the engagement on getting information from CW8 Ambika and another person that the revision petitioner is a married person. It is clear from the evidence of PW2 and PW3 that they only retreated from the marriage. The reason alleged was that the revision petitioner was earlier married to CW8 Ambika and by concealing the said marriage, this marriage was proposed. Crl.R.P.675/2013 : 5 : PW6 was the Investigating Officer, who filed the final report before the court after completing the investigation. PW6 could not collect any document to prove the marriage between CW8 Ambika and the revision petitioner. There is absolutely no evidence before the court to show that the revision petitioner married CW8 Ambika.
8. The cheating in this case was committed by way of concealment of the former marriage, as per the evidence of PW2 and PW3. However, there is absolutely no evidence to prove the alleged marriage between the revision petitioner and CW8 Ambika. Therefore, the trial court acquitted the revision petitioner for the offence under Section 495 I.P.C. The said finding of the court below was not challenged. Therefore, it attained finality. From the evidence, it is clear that PW2 and PW3 alone had Crl.R.P.675/2013 : 6 : rescinded Ext.P1 agreement. Since the prosecution could not establish that the revision petitioner had formerly married CW8 Ambika, the revision petitioner cannot be blamed for the revocation of Ext.P1 agreement by PW2 and PW3. In the said circumstances, it cannot be said that PW2 and his family members were cheated by the revision petitioner. For the said reason, the offence under Section 420 I.P.C. is not attracted in this case. Since, the offences under Sections 420 and 495 I.P.C. were inter-linked in this case, the offence under Section 420 I.P.C. cannot be attracted when the offence under Section 495 I.P.C. was not established. Consequently, the conviction and sentence passed by the courts below under Section 420 I.P.C. cannot be sustained.
In the result, this revision petition stands allowed, Crl.R.P.675/2013 : 7 : setting aside the conviction and sentence passed by the courts below under Section 420 I.P.C. and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/.1.2..2017 // True Copy // PA to Judge