Dismissed

Shahina v. State of Kerala

Kerala HC15 Mar 2013CRL.A/1373/2008

Case brief

AI extract

What is this about?

The High Court dismissed the complainant's appeal against the Additional Sessions Judge's acquittal of accused in a Section 498A case. The appeal was rejected as the appellate court was justified in disbelieving evidence due to contradictions, infirmities, lack of corroboration, and substantial delay in filing the complaint.

What did the court decide?

The criminal appeal was dismissed, upholding the acquittal of the accused.

Shahina Vs State of Kerala — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934

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CRL.A.No. 1373 of 2008 ( )

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CRA.638/2005 of ADDL.SESSIONS JUDGE, FAST TRACK COURT-I, ALAPPUZHA DATED 09.05.2006

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C.C.NO.849 OF 2001 OF JFCM COURT-I, CHERTHALA, DATED 22.9.2005

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APPELLANT(S)/RESPONDENT NO.2/COMPLAINANT:

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SHAHINA, D/O.T.BEERAN, PUTHUKOLIPPARAMBIL, CC 20/1170 NO.HOUSE, KONAINE ROAD, PALLURUTHY, KOCHI.

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BY ADV. SRI.A.X.VARGHESE

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RESPONDENT(S)/ACCUSED:

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1. STATE OF KERALA,REP.BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.

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2. ABDUL RAHIM, S/O.SHAMSUDIN, PALATHARA VEEDU, KODAMTHURUTHU PANCHAYATH, CHANDIROOR NEAR KUMARATHUPADY TEMPLE, CHERTHALA.

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3. SUBAIDA, W/O.SHAMSUDIN, PALATHARA VEEDU KODAMTHURUTHU PANCHAYATH, CHANDIROOR NEAR KUMARATHUPADY TEMPLE, CHERTHALA.

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4. MUBEENA, D/O.SHAMSUDIN, PALATHARA VEEDU, KODAMTHURUTHU PANCHAYATH, CHANDIROOR NEAR KUMARATHUPADY TEMPLE, CHERTHALA.

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5. JOONAIDHU, S/O.SHAMSUDHIN, PALATHARA VEEDU, KODAMTHURUTHU PANCHAYATH, CHANDIROOR NEAR KUMARATHUPADY TEMPLE, CHERTHALA.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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ADV. SRI.A.DINESH RAO

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2013, THE COURT ON 15.03.2013 DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.1373 of 2008

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Dated this the 15^th day of March, 2013.

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J U D G M E N T

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The complainant in a private complaint is the

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appellant as she is aggrieved by the judgment dated 9.5.2006 in Crl.A.No.638 of 2005 of the court of Additional Sessions Judge, Fast Track court-I, , by which the learned Judge acquitted all the accused who faced the prosecution for the offence punishable under section 498 A r/w 34 of IPC, though they were convicted and sentenced by the trial court, namely, the court of Judicial First Class MagistrateII, Cherthala, by its judgment dated 22.9.2005 in C.C.No.849 of 2001.

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The case of the complainant is that the marriage between the complainant, who was examined as PW1 and accused No.I was solemnised on 29.8.1996 as per their religious custom and thereafter they lived as husband and

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wife in her matrimonial house till 16.5.1999 and a child was born in the said wedlock. According to the complainant, at the time of the marriage, her father had given an amount of `30,000/- and 25 sovereigns of gold ornaments to the accused. It is the further case of the complainant that while she was staying with the accused, she had been treated cruelly and ill-treated both physically and mentally demanding more dowry. The allegation continues to the effect that the 1^st accused who is her husband was suspicious of the complainant and he used to come home drunken and abuse her, and also used to assault on several occasions. It is the further allegation that the complainant and her child were locked in a room and she was inhumanly ill-treated by A1 to A3 and attempted to kill her. It is also her case that when the complainant demanded and sought permission to attend the betrothal of her younger brother which was scheduled on 16.5.1999, after rejecting the request, on 16.5.1999 the 1^st accused and the 3^rd

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accused took the complainant and her daughter to a room and manhandled her. It is also alleged that the 2^nd accused inserted cloths into her mouth and attempted to kill her. Thereafter, the complainant and her daughter were pushed to the street. She had also stated about an incident allegedly taken place during the month of February 1999, by which also she was subjected to brutal manhandling and thereafter an attempt was made to murder her and her daughter by pouring kerosene, but the complainant and her daughter were rescued by a neighbour. It is also her case that connected with the incident taken place on 16.5.1999, she was admitted in the Government hospital at Palluruthy and on discharge from the said hospital, a complaint in the court of Judicial First Class Magistrate-I, Kochi, was filed, which was forwarded under section 156(3) of Cr.P.C. to Kasaba Police Station, Kochi, from where it was sent to Aroor police station. It is also the case of the complainant that on 27.5.1999, an agreement was executed between the

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complainant and the 1^st accused agreeing to live separately. According to the complainant, though crime No.230/2000 was registered in the Kasaba Police Station, Kochi, the same was forwarded to the Aroor police station, where the case was re-numbered as Crime No.210/2000, but finally the case was referred as false and therefore she preferred the present complaint as a protest before the court of Judicial First Class Magistrate-I, Cherthala, which was taken on file as C.C.No.849 of 2001.

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On filing the complaint in the court of Judicial First Class Magistrate-Cherthala, the sworn statements of the complainant and two witnesses were recorded and these were taken on file and summons were issued to the accused. Thus when the accused appeared, copy of the complaint and documents were served on them. Thereafter, the statements of Pws.1 to 3 were recorded and Exts.P1 and P2 documents were marked and thus after hearing the prosecution and the defence, a formal charge was framed

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against the accused for the offence punishable under section 498 A r/w 34 of IPC, which when read over and explained to the accused, they pleaded not guilty and denied the charge. Thereafter, Pws.1 to 3 were recalled and they were cross examined. On completing the evidence of the complainant, accused were questioned under section 313 of Cr.P.C. during which they denied the entire prosecution allegation and stated that they are innocent. The husband of the complainant-A1, has further stated that the complainant was not ready to reside at his house and she demanded him to reside at Palluruthy and there was no talk of dispute about the paternity of the child and they never demanded dowry. Exts.D1 and D2 were marked as defence exhibits, though no defence witness was examined. The trial court has finally found that the evidence given by PW1 proves beyond doubt that the accused have subjected the complainant to cruelty both mentally and physically and the evidence of Pws.2 and 3 corroborated the evidence of

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PW1 and accordingly, held that the complainant has succeeded in proving the allegation against the accused. Consequently, the accused are found guilty of the offence under section 498 A r/w 34 of IPC and accordingly they are convicted thereunder. On such conviction, each of the accused is sentenced to undergo rigorous imprisonment for 1 year and to pay fine of `2,000/- each and in default of payment of fine, each of them is directed to undergo simple imprisonment for a further period of 3 months.

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Challenging the above finding, order of conviction and sentence, the accused preferred an appeal before the Sessions court-Alappuzha and by judgment dated 9.5.2006 in Crl.A.No.638 of 2005, the court of Additional Sessions Judge, Fast Track-I, Alappuzha, acquitted the accused on the ground that the evidence of PW1 cannot be believed because of the infirmities and the improvements in her deposition and as such, the case of the complainant is rendered as wholly unbelievable and concocted one, and it

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was launched as an after thought. Similarly, the appellate court has held that no reliance can be placed on the evidence of Pws.2 and 3 for the purpose of recording the conviction of the accused. In addition to that, the appellate court has also found that the trial court was not justified in holding that there has been no delay in filing the complaint. According to the learned Sessions Judge, there was substantial delay which was not properly explained. For the above reasons, the learned Judge of the appellate court has found that the conviction and sentence recorded by the trial court against the accused under section 498 A r/w section 34 of IPC is not justified and therefore the finding of the court below is reversed and accordingly the accused are acquitted, after setting aside the judgment of the trial court. Thus it is the above finding and the order of acquittal recorded by the lower appellate court reversing the order of conviction passed by the trial court, that are challenged in this appeal at the instance of the complainant, who is

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examined as PW1 during the trial.

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I have heard Adv.Sri.A.X.Varghese learned counsel

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for the appellant and Adv.Dinesh Rao learned counsel for the respondents 2 to 5.

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Sri.A.X.Varghese, the learned counsel appearing for the appellant vehemently submitted that the lower appellate court went wrong in disbelieving the evidence of PW1, the complainant and also the finding that the complaint was filed belatedly. According to the learned counsel, the learned Magistrate of the trial court has elaborately considered the evidence on record and appreciated the same properly and found against the accused and no acceptable reasons are assigned by the learned Judge of the lower appellate court in interfering with the finding and order of conviction recorded by the trial court. Learned counsel strenuously submitted that the entire episode connected with the cruelty and ill treatment meted out by the accused against the complainant has taken place in the

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matrimonial home and therefore it was practically impossible to get independent evidence, particularly from that locality and the learned Judge of the appellate court has miserably failed to consider the above aspect. It is the further submission of the learned counsel that Ext.P1 is a contemporary document which would show that connected with the incident taken place on 16.5.1999, by which the complainant was subjected to severe manhandling and illtreatment, she was admitted in the Government hospital at Palluruthy, where she had undergone medical examination and treatment by the doctor. According to the learned counsel, the lower appellate court has not given any evidential value to Ext.P1 document and on an erroneous conclusion, found that the evidence of PW1 cannot be believed. It is the further submission of the learned counsel that PW1 has filed a complaint dated 21.8.2000 in the court of Judicial First Class Magistrate-I, Kochi, which was forwarded under section 156(3) of Cr.P.C. to the Kasaba

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Police Station, Kochi, from where the same was forwarded to Aroor police station and thereafter, when the complainant received Ext.P2 refer notice, she filed the present protest complaint dated 21.7.2001 in the court of Judicial First Class Magistrate-I, Cherthala. It is also pointed out that it is beyond dispute that an agreement was entered into in the presence of Circle Inspector of Police, Kuthiathodu, on 27.5.2000 by which the matrimonial bondage between PW1- the complainant and the 1^st accused severed. So the counsel for the appellant submitted that absolutely there was no delay and the appellant was prosecuting the matter vigilantly. Thus according to the learned counsel, in a prosecution for an offence punishable under section 498 A r/w 34 of IPC, at the instance of the complainant, the complainant has adduced best available evidence, ie., oral testimony of PW1- the complainant, whose evidence is supported by the evidence of Pws.2 and 3, two independent witnesses and those evidence and

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allegation raised by the complainant were accepted by the learned Magistrate as true but the lower appellate court without any proper and justifiable reasons interfered with the same and acquitted the accused and therefore the judgment of the trial court is to be restored, after setting aside the judgment of the lower appellate court and thus the conviction and sentence imposed on the respondent/ accused have also to be restored.

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On the other hand, Sri.Dinesh Rao learned counsel for the respondent vehemently submitted that the evidence of PW1- the complainant is not sufficient to prove the charge raised against the accused, and the evidence of PW1, who is inimical to the accused, cannot be accepted, especially when it is not free from contradictions and infirmities. After referring to the evidence of PW1- the complainant, the counsel submits that going by that evidence, Ext.P1 wound certificate appears to be connected with the incident that allegedly took place during the month

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of February 1999 and not with respect to the incident claimed to have taken place on 16.5.1999. According to the learned counsel, Ext.P1 wound certificate has no evidential value at all, since the same is not proved legally. It is also the submission of the learned counsel that even if the case of PW1, that she was hospitalised on 16.5.1999 and discharged on 20.5.1999, is admitted as correct for the sake of argument, from the records it is crystal clear that she preferred the complaint for the first time on 21.8.2000 only and hence there is substantial delay. Thus the learned counsel submitted that the above vital aspects were not considered properly and legally by the trial court but the same was subjected to legal scrutiny by the lower appellate court and thereby corrected the mistake committed by the trial court and accordingly the accused were acquitted. Thus the counsel for the respondents submits that the findings of the lower appellate court are supported by materials and evidence on record and there is no perversity

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or illegality in those findings and therefore this Court will not be justified in interfering with the order of acquittal recorded in favour of the respondents/accused. Thus according to the counsel, the appeal is liable to be dismissed.

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I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondents and I have gone through the judgment of both the trial court as well as the lower appellate court and the evidence and materials on record.

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In view of the rival contentions advanced by the counsel for the appellant as well as the respondents and in the light of the evidence and materials on record, the question that arises for consideration is whether the lower appellate court is justified in interfering with the findings of the trial court and reversing such findings and acquitting the accused and the further question to be considered is whether the appellant has succeeded in her challenge

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against the judgment of the lower appellate court and its findings. As I have already referred to the facts involved in the present case, I am not proposed to repeat the same. Admittedly the marriage between the complainant and the 1^st accused was solemnised on 29.8.1996 and thereafter, the complainant was residing along with her husband in her matrimonial house till 16.5.1999 and it is also beyond dispute that a child was born in the said wedlock. During the evidence of PW1, though she had stated about the cruelty meted out against her by the accused connected with the demand of dowry, according to me, her evidence is not specific and clear. During her deposition, PW1 has stated about the two incidents by which she was subjected to cruelty. One was allegedly taken place during the month of February 1999 and the other incident was on 16.5.1999. In this juncture it is relevant to note that with respect to the alleged incident taken place during the month of February 1999, absolutely there is no evidence, except her interested

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version. Suffice to say, no step is taken by her connected with the above incident. In this juncture, it is relevant to note that as per the said incident, according to PW1, the accused attempted to kill her and her daughter by pouring kerosene oil over their body. Comparing with the incident that is alleged to have taken place on 16.5.1999, the said incident according to me, is more serious and severe. But no action whatsoever was taken by PW1. With respect to the incident allegedly taken place on 16.5.1999, as I indicated earlier, the main evidence is that of PW1-the complainant herself. The lower appellate court has refused to believe her, since there are serious infirmities and lots of improvements in her evidence.

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Going by the evidence of PW1 itself, it can be seen that though the marriage between herself and the 1^st accused was solemnised on 29.8.1996 and a child was born out in the said wedlock, her main grievance is with respect to the alleged incident taken place on 16.5.1999 and during

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the month of February 1999. Though she had stated before the court that the accused used to subject her to cruelty, no details of any particular incident was deposed, except the general statement about the demand for dowry and cruelty. Suffice to say, connected with any of such incident or with respect to the above two incidents, she has not made any complaint before her relatives and none of her relatives were examined to prove any such facts or incident. As I indicated earlier, though the incident has allegedly taken place during the month of February 1999, no petition is filed or any legal step was taken to redress the grievance, if any connected with such incident. That incident was also not claimed to have been reported to any of her relatives. As rightly pointed out by the counsel for the respondents, during the chief examination of PW1, after stating about the incident on 16.5.1999, she had deposed that thereafter herself and her daughter were driven out to the street. In the chief examination, she has stated that it was on

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16.5.1999 the last incident occurred, and according to her, the betrothal of her younger brother was scheduled on 16.5.1999 and her relatives came to her matrimonial house in advance to invite herself and the accused. But the accused did not show any interest. According to PW1, she requested the accused to permit her to attend the function but the same was declined. Her deposition is extracted for convenience. “16.9.1999-ല എന� വ�ടണന�� ഞ�ന ആവശ�ന�ട�. പ�ത�കള അന�വദ�ച�ല. അനത ത�ടര�� എന! ഭര#�വ� അബ�ള റഹ��' 3- പ�ത� ��ബ)നയ�' എന� ��റ�ക�ള�ല കയറ� ദദദഹ��പദവ' ഏല��ച�. 2- പ�ത� സ�ബബദ വ�യയ�ല ത�ണ� ത�ര�ക� കയറ� എന� ശ3�സ' ��ട�ച� നക�ല�ന പശ��ച�. അത�ന�ദശഷ' എന�യ�' ക�ഞ�നനയ�' നതര�വ�ദ6ക� തള�യ�ട�.” Towards the last of her chief examination, after stating about the alleged incident during the month of February, 1999, “അയലവ�സ�യ�യ ഒര�ള വ�� എന�യ �' ക�ഞ�നനയ�' രക�ച�. വ�വര' അറ�ഞ �റ� പ�ത�കള 1- പ�ത�ക� ഒ#� പ�വര#�ച�. വ�വര�റ�ഞ� എന! സദഹ�ദരന വ��. എന� എന! വ)ട�ദ6ക� നക�ണ� ദ��യ�. എന� നതര�വ�ദ6ക� ഇറക� വ�ട ഞ�ന ഒര�

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ബന�വ)ട�ല അഭയ' ദതട�. ആ വ)ട�ല എന! സദഹ�ദരന വ�� എന� കര�ദവ6��ട� �ഹ�ര�ജ�സ� ദഹ�സ��റ6�ല പ�ദവശ��ച�.” A careful

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reading of the chief examination of PW1 shows that she was hospitalised connected with the incident taken place during the month of February 1999. Suffice to say that, no reexamination was conducted and no clarification was sought from PW1 to the effect that she was hospitalised connected with the incident on 16.5.1999. It is also relevant to note that connected with the incident on 16.5.1999, what she has stated is that her husband and the 3^rd accused Mubeena had taken PW1 inside to a room and manhandled her and the 2^nd accused Subaida put cloth into her mouth and thus tried to commit her murder. According to me, the above claim of PW1 is not supported by Ext.P1 wound certificate, even if the same is not proved legally and properly. In Ext.P1 wound certificate, it cannot be said that the injuries noted therein are corresponding to the so called incident taken place on 16.5.1999. The overtact of A1 or the 3^rd accused-

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Mubeena are not stated by PW1, except a general statement to the effect that “.......ദദദഹ��പദവ' ഏല��ച�.” It is also relevant to note that no corresponding injuries are noted in Ext.P1 to the overtact of the 2^nd accused as alleged by PW1. So even if Ext.P1 wound certificate is taken as correct and admitted, according to me, the same renders no assistance to the complainant to substantiate her case against the accused. As rightly pointed out by the learned counsel for the respondent, Ext.P1 is not proved properly. The doctor who issued Ext.P1 is not examined and no step was taken in this regard. Had the doctor been examined, defence could have cross examined PW1 on the basis of the content of Ext.P1. So the non-examination of the doctor concerned, prejudiced the defence and the complainant has miserably failed to prove the contents of Ext.P1 and show that the contents therein are corresponding to the incident allegedly occurred and pleaded against the accused. So the complainant has miserably failed to prove her allegation

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against the accused connected with the alleged incident taken place on 16.5.1999. During the time of the argument, the learned counsel has not argued much on the deposition of Pws.2 and 3 to show that the evidence are acceptable. The learned Judge of the appellate court has, by assigning numerous reasons declined to act upon the evidence of those witnesses. According to me, the grounds on which the lower appellate court refused to believe Pws.2 and 3 are based upon sound and good reasons and I cannot say that the same are wrong.

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Another ground considered by the learned Judge of the lower appellate court is with respect to the delay. The alleged incident, against which the present complaint is filed, has taken place on 16.5.1999. She was hospitalised on the same date but she claimed that she was discharged on 20.5.1999. However, she filed the complaint only on 21.8.2000. Thus there is a delay of more than one year. Learned counsel for the appellant, sticking on the findings

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of the trial court submitted that there is no delay, since she had filed complaint on 16.5.1999 based upon which Ext.D1 agreement dated 27.5.1999 was executed at the instance of the Circle Inspector of police, Kuthiathodu. But the learned Judge of the appellate court has found that absolutely there is no explanation offered as to why PW1-the complainant did not make any enquiry regarding the petition claimed to have been filed by her before the Sub Inspector of police, Aroor Police Station and therefore, according to the learned Judge, there is no evidence to show that the complainant has filed any petition before the police station on or before 21.8.2000.

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Besides all the above the defects, including the contradictions, infirmities, insufficiency of evidence and the delay, according to me, in this case, there are certain other circumstances and facts which go against the complainant. As I indicated earlier, none of the relatives of the complainant was examined in this case to corroborate the

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evidence, if any of PW1, with respect to the alleged cruelty and ill-treatment taken place in her matrimonial home. No other reliable and independent witness was also examined. I have already found that there is substantial delay of more than one year which is not properly explained by the complainant. According to me, it cannot be ruled out that the delay has occurred, since she preferred the complaint as an after thought, after receiving the gold ornaments and the amount as evidenced by Ext.D1. So in such a case, the evidence of PW1, unless the same is intact and free of contradictions and improvements, and supported by independent and reliable evidence in the nature of corroboration, the case of the complainant cannot be accepted. According to me, the above crucial aspects were not properly considered by the trial court. As a result of the judgment of the lower appellate court, the above fault on the part of the trial court is seen rectified and corrected and thereby the accused are acquitted after reversing the order

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of conviction. According to me, the available materials and evidence would show that the complainant has approached the court of Judicial First class Magistrate-I, Kochi, by filing a complaint dated 21.8.2000, which was forwarded under section 156(3) of Cr.P.C. to the Kasaba Police Station, Kochi, from where it was forwarded to the Aroor Police Station and though Aroor police has registered the case as crime No.210 of 2000, as evidenced by Ext.P2, the same was referred as false one. It is thereafter the complainant filed the present protest complaint dated 21.7.2001 before the court of Judicial First Class Magistrate-I, Cherthala, whereupon the present case was instituted. So after the alleged incident on 16.5.1999, as per the records, the first complaint came into existence only on 21.8.2000. Though the complainant has taken a contention to the effect that she approached Aroor Police Station by filing a complaint, the same has not been substantiated. It is also relevant to note that, if she had filed a complaint as claimed by her,

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before Aroor police station, she could have prosecuted the same, especially when the complainant has not disputed the fact that Ext.D1 agreement was arrived at the instance of the Circle Inspector of police, Kuthiathodu police station. In spite of Ext.D1, the complainant has not taken any further steps or enquiry and thus it can be seen that she had filed the first complaint only on 21.8.2000, which is highly belated. The trial court has not considered the above aspect and the lower appellate court after an elaborate consideration found that there is considerable delay. According to me, the above finding of the lower appellate court is absolutely correct.

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In the light of the above discussion and the evidence and materials referred to above, it can be seen that the lower appellate court after assigning acceptable and convincing reasons, that too on the basis of the evidence and materials on record, disbelieved the complainant and accordingly reversed the findings of the

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trial court and acquitted the accused. Therefore, it cannot be said that the findings of the lower appellate court and the order of conviction are perverse or illegal. The Honourable Apex Court in a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl)

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430} has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. On a consideration of the facts and circumstances involved in the case in the light of the dictum laid down in the above decision, I am of the view that, the appellant has miserably failed to show that the findings of the trial court are perverse or illegal and in making out any prima facie case in support of her challenge against the judgment of the trial court.

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Therefore, the appeal fails and accordingly the same is

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dismissed.

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Sd/-

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V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Shahina v. State of Kerala

Case brief

What is this about?

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Shahina v. State of Kerala

Case brief

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