Abdul Khader @ Balan Kurup v State of Kerala and Rahiyanath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945** **CRL.REV.PET NO. 2756 OF 2011** **AGAINST THE JUDGMENT IN CRA 651/2004 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-III, THALASSERY** **CC 146/2003 OF CHIEF JUDICIAL MAGISTRATE,THALASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** ABDUL KHADER @ BALAN KURUP, S/O.RAMA KURUP, AGED 57 YEARS, KELAKAM AMSOM, DESOM, THALASSERY TALUK. BY ADV SRI.C.P.PEETHAMBARAN ## **RESPONDENT/RESPONDENT/COMPLAINANT:** 1. STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KOLAVALLUR POLICE STATION, KANNUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. Addl.2. RAHIYANATH, D/O.HASSAN, AGED 35 YEARS, PARAPPAN HOUSE, EDAKKARA AMSOM, DESOM, MALAPPURAM DISTRICT. (Addl.R2 is impleaded as per order dated 6.12.2011 in Crl.M.A 10419/2011) BY SR.P.P.SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **CRL.REV.PET NO. 2756 OF 2011** **2** ## **ORDER** The revision petition is filed challenging the legality and correctness of the judgment passed in Crl.A No.651/2004 of the Court of Session, Thalassery (Appellate Court), confirming the judgment in C.C No.146/2003 of the Court of the Chief Judicial Magistrate, Thalassery (Trial Court) holding the revision petitioner guilty and convicting him and sentencing him for the offence under Section 498A of the Indian Penal Code ( 'IPC' for short). The revision petitioner was the sole accused in the above crime. ## **The prosecution on brief** : 2. The prosecution case is that, the revision petitioner was married to PW1/CW1 on 5.1.2003 as per Muslim religious rites and customs. They were living together as husband and wife in a rented house at Parat in Kolavallur Amsom from 23.2.2003 to 6.4.2003. PW1 was given 15 sovereigns of gold ornaments and **CRL.REV.PET NO. 2756 OF 2011** **3** Rs.50,000/- as share in her parental properties. After the couple began cohabitation, the accused started demanding more dowry from PW1. On 10.3.2003, he tactfully took away eight sovereigns of gold ornaments and disposed it of under the guise of starting a business, and spent the entire amount. Again on 6.4.2003, he demanded for the remaining 7 sovereigns of gold ornaments of PW1. When she refused to yield to the demand of the accused, he brutally manhandled her and left the place. Thus, the accused has committed the above offence. 3. PW1 lodged a complaint with the Kolavallur Police on 9.4.2003 and Ext.P4 F.I.R was registered in Crime No.134/2003. 4. The Police, after investigation, filed the final report before the Trial Court alleging that the accused has committed the offence under Sec.498A of the IPC. The accused denied the substance of accusations read **CRL.REV.PET NO. 2756 OF 2011** **4** over to him. 5. In the trial, the prosecution examined PW1 to PW6 and marked Exts.P1 to P6 in evidence. The accused denied the incriminating circumstances appearing against him in the questioning under Sec.313 of the Code of Criminal Procedure. The accused examined DW1 and marked Ext.D1 on his side. 6. The Trial Court, after analysing the materials placed on record, found the accused guilty and convicted him for the offence under Section 498A of the IPC and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/- and in default, to undergo simple imprisonment for a further period of two months. 7. Aggrieved by the judgment, the accused preferred Crl.A No.651/2004 before the Appellate Court. 8. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, **CRL.REV.PET NO. 2756 OF 2011** **5** confirmed the conviction and sentence passed by the Trial Court. 9. It is challenging the concurrent judgments of the courts below; the accused has preferred this revision petition. 10. Heard; Sri.C.P.Peethambaran, the learned counsel appearing for the revision petitioner and Smt.Pushpalatha M.K, the learned Public Prosecutor appearing for the first respondent – State. 11. Is there any illegality, irregularity or impropriety in the judgments of the courts below? 12. The prosecution case, as already extracted above, is that the accused tactfully took away eight sovereigns of gold ornaments of PW1 on 10.3.2003 and thereafter on 6.4.2003 again demanded for the remaining seven sovereigns of gold ornaments. When the PW1 refused to handover the gold ornaments, he brutally assaulted her and left the residence. Thus, he **CRL.REV.PET NO. 2756 OF 2011** **6** has committed the above offences. 13. In order to prove the prosecution case, the defacto complainant was examined as PW1, her brother was examined as PW2, the Secretary of the Jama-ath who solemnised the marriage between the accused and PW1- was examined as PW3, the Doctor who proved Ext.P3 wound certificate was examined as PW4 - the Constable who registered Ext.P4 FIR was examined as PW5 and the Investigating Officer was examined as PW6 and Exts.P1 to P6 documents were proved through the above witnesses. The accused in addition to denying the incriminating circumstances in the 313 Cr.P.C questioning, also examined DW1 and proved Ext.D1 certificate to substantiate that he was only a Hindu and there was no valid marriage between him and PW1. 14. The Police, after investigation, laid the final report alleging that the act of the accused in tactfully taking away PW1's eight sovereigns gold ornaments **CRL.REV.PET NO. 2756 OF 2011** **7** and disposing it of and, thereafter, demanding another 7 sovereigns of gold ornaments and then assaulting PW1 had committed the offence under Sec.498A of the IPC. 15. Section 498A of the Indian Penal Code reads as follows: ‘498-A. 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 with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes 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.** ’ (emphasis given) ## 16. A careful reading of the above provision shows ## that the cruelty has been explained in two limbs. **CRL.REV.PET NO. 2756 OF 2011** **8** 17. Going by the prosecution case, it is only explanation (b) that is alleged against the accused. 18. Interpreting explanation (b) of Section 498A, in a case of identical nature, this Court in **Niyas vs. State of Kerala** [2023 KHC Online 656] has pithily laid down the law as under: 2. The cruelty within the meaning of 498A IPC consists of two clauses (a) and (b) within the Explanation attached to that Section. The clause (a) explains “cruelty” within its sphere any wilful conduct from the part of husband or the relative of husband as is likely to drive the woman to commit suicide or to cause any grave injury or danger to life, limb or health, whether physical or mental. **It is by way of clause (b), even a “harassment” to the woman was brought under the purview of “cruelty” for the purpose of Section 498-A IPC, if 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 on account of failure to meet such demand, which would by itself show that the “harassment” must be of such a nature to exert compulsion with a view to coerce her or her relatives to meet the unlawful demand for property or valuable security. Necessarily, in order to bring home the application of clause (b) of Explanation attached to Section 498 A IPC, atleast the following ingredients should be established; (i) there should be harassment on account of an unlawful demand for any property or valuable security by the husband or his relatives (ii) it should be towards the wife or her relatives (iii) the wife or her relatives were subjected to harassment (cruelty) with a view to coerce her or her relatives to meet such unlawful demand or the harassment is on account of failure to meet** **CRL.REV.PET NO. 2756 OF 2011** **9** **such demand. Mere sporadic incidents of ill-treatment or mundane differences or trivial disputes that may arise between the spouses or their relatives in the usual course of life, though it may have its own impact, may not be sufficient** **to bring out the offence under Section 498 A IPC.** The expression “harassment” is not defined in the provision or anywhere in the Code. It should be understood in relation to the mischief sought to be suppressed under the said provision. Necessarily, the wording used “coercing” in clause (b) assumes importance. The word 'coercion' is also not defined anywhere in the provision or in the Code, but can find a place under Section 15 of the Contract Act, which stands for “committing or threatening to commit, any act forbidden by the Code or an unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person “to enter into an agreement” The expression 'to enter into an agreement' as incorporated in the definition clause under Section 15 of the Contract Act, be understood substituted by the expression 'to meet any unlawful demand or on account of failure to meet such demand', for the purpose of clause (b) of Explanation to Section 498 A IPC in order to have an understanding of the word “coercing” used in clause (b) of the Explanation and it will give rise to an idea about what actually constitutes the expression “harassment” to bring home the vital ingredient of the said offence “cruelty” and it shall not be misunderstood with the dictionary meaning or any act of “cruelty” without the element, which would constitute clauses (a) or (b) of Explanation attached to, for the purpose of criminal liability under that provision viz., Section 498 A IPC. **The ingredient, which would constitute “coercion” must be applied so as to have an understanding of what actually amounts to 'harassment' within the meaning of clause (b) of the Explanation. The corollary is that in order to bring home the vital ingredient “cruelty” under Clause (b) of Explanation, the 'harassment' must be of the nature sufficient to coerce either the wife or her relatives to meet any unlawful demand for property or** **CRL.REV.PET NO. 2756 OF 2011** **10** **valuable security or on account of failure to meet that demand** . **A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC** . Like wise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC. 3. The requirement to be established to bring home the guilt of accused under Section 498 A has been laid down by the Apex Court in a catena of decisions such as Satish Kumar Batra and Others v. State of Haryana (AIR 2009 SC 2180), Rajendran and Another v. State Assistant Commissioner of Police (Law and Order) (AIR 2004 SC 855), Onkar Nath Mishra and Others v. State (NCT of Delhi and Another) (AIR 2008 SC (Supp) 204), M. Srinivasulu v. State of A.P. (AIR 2007 SC 3146), wherein it is settled that consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498 A IPC. 4. The Apex Court on one occasion has cautioned against the practice of implicating the husband and his near relatives, which would lead to immense sufferings either to the husband or his relatives and sometimes it may go to the extent of breaking the very relation of married couple. In Preeti Gupta v. State of Jharkhand [(2010) 7 SCC 667 = AIR 2010 SC 3363], the Apex Court has cautioned against the tendency of over implication reflected in large number of cases and found that it ultimately creates enormous social unrest affecting peace, harmony and happiness of the society after observing that even ultimate acquittal may not be able to wipe out the deep scars of suffering of ignominy and it is high time that **CRL.REV.PET NO. 2756 OF 2011** **11** the legislature must take into consideration the pragmatic realities and make suitable changes in existing law.” (emphasis given) 19. The above provision and the interpretation given by this Court undoubtedly requires the prosecution to establish that the harassment of the woman was with a view to coerce her or any person related to her to meet to any unlawful demand for any property or valuable security or is on account of the failure by her any person related to her to meet such demand. 20. In the instant case, it is the solitary testimony of PW1- the defacto complainant – that the accused had taken away eight sovereigns of gold ornaments and subsequently demanded her remaining seven sovereigns of gold ornaments, which she refused to handover, and it is out of this animosity that the accused assaulted her. However, there is nothing on record to corroborate the above version. **CRL.REV.PET NO. 2756 OF 2011** **12** 21. It is discernible from the materials placed on record that PW1 was a Tailor and the accused used to supply her with textiles. In due course of time, they fell in love and used to travel to Coimbatore to purchase textiles. Subsequently, they started living together. Thereafter, they decided to get married, against the wishes of their relatives. So, they took a house on lease at Parat and started cohabitation. Unfortunately, within a short span of three months, their relationship turned sour and ultimately led to registration of the crime. 22. On an appreciation of the materials on record, it can be revealed that PW1 was a Muslim and the accused was a Hindu by religion. It is proved through PW3 and Ext.P1 marriage certificate that the accused had converted to Islam and got married to PW1 as per Muslim religious rites. Even though PW1 has alleged that the accused had taken away her eight sovereigns of gold ornaments for his own purpose and, later he again asked PW1 to hand over her seven remaining **CRL.REV.PET NO. 2756 OF 2011** **13** sovereigns, there is nothing on record to prove the alleged handing over and misappropriation of the jewelry. 23. It is the further case of the prosecution that the accused assaulted her at 6 a.m on 6.4.2003 and he left the house. She allegedly informed the neighbours and her brother (PW2), who took her to the Doctor (PW4) at 7.45 p.m and Ext.P3 wound certificate was issued. 24. A perusal of Ext.P3 wound certificate would reveal that there is no external injury on PW1. PW4 had testified that PW1 complained of only body pain and there was no apparent injury. 25. Admittedly, none of the other prosecution witnesses have witnessed the alleged incident that occurred on 06.04.2003 or any other incident prior to that. 25. In the light of the law laid down in **Niyas** (supra), it is necessary that the harassment has to be of such nature sufficient to coerce either the wife or her **CRL.REV.PET NO. 2756 OF 2011** **14** relatives to meet any unlawful demand for property or valuable security or on account of failure to meet the demand. A mere skirmish or intermittent quarrels in a marriage is insufficient to attract the criminal liability under Section 498A of the IPC. 26. On a careful consideration of the materials on record, this Court is of the definite view that the prosecution has failed to prove the ingredients of Section 498A of the IPC. 27. Another defence that was taken by the accused was that there was no valid marriage between him and PW1, to attract an offence under Section 498A of the IPC. 28. In addition to the examination of PW 3, who proved Ext.P1 marriage certificate, the law is wellsettled by the Hon'ble Supreme Court in **Subbharao v. State of A.P.** [2009 (2)KLT 531 SC], that it would be appropriate to construe the expression ‘husband’ to cover a person who enters into a marital relationship **CRL.REV.PET NO. 2756 OF 2011** ## **15** under the colour of such proclaimed or fetched status of husband, subjects the woman to cruelty and coerce her in any manner or for any purpose enumerated under Section 498A, whatever be the legitimacy of the marriage itself for the limited purpose of Section 498A. Therefore, a purposeful construction has to be given in cases of such nature. 29. The above view has been reiterated by this Court in **John Idiculla v. State of Kerala** [2005 (3) KLT 20] which in turn had followed the earlier decision of the Hon'ble Supreme Court in **Reema Aggarwal v. Anupam** [2004(2) KLT 822]. 30. In view of the categoric exposition of law in the afore-cited precedents and the materials placed on record, particularly the evidence of PW 3 read with Ext.P1 marriage certificate, this Court has no doubt in its mind to conclude, prima facie that there was a marriage between the revision petitioner and PW1 for the purpose of considering the offence of Section 498A **CRL.REV.PET NO. 2756 OF 2011** **16** of the IPC. 31. On an overall consideration of the materials placed on record and the findings rendered above, I am of the firm view that the prosecution has miserably failed to prove that there was harassment on the part of the accused with a view to coercing PW1, to meet his unlawful demand for her gold ornaments and it is on account of her failure to meet to such demand, he committed the alleged harassment. Since the prosecution has not proved the case beyond reasonable doubt, I hold that the revision petitioner/accused is entitled for the benefit of doubt. Hence, the concurrent findings of guilt and the consequent conviction and sentences have to be set aside. ## In the result, - (i) The criminal revision petition is allowed. - (ii) The judgments in Crl.A.No.651/2004 and C.C.No.146/2003 of the courts below are set aside. **CRL.REV.PET NO. 2756 OF 2011** **17** - (iii) The accused is held not guilty for the offence and consequentially, he is acquitted, and set at liberty. - (iv) The bail bonds executed by the accused and his sureties are hereby discharged. ma/24.11.2023 Sd/- **C.S.DIAS, JUDGE**