Abdul Nazar v. Beevi and State of Kerala

``` CRL.R.P NO.4398/2007 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, ``` ## **`1943`** ``` CRL.REV.PET NO. 4398 OF 2007 ``` ``` AGAINST THE JUDGMENT IN CRL.A NO.268/2005 OF ADDITIONAL SESSIONS COURT KOZHIKODE CC 192/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS I, ``` ## **`PERAMBRA`** ## **`REVISION PETITIONER/APPELLANT:`** ``` ABDUL NAZAR S/O MOIDU, THAVITHAN AMSOM, THINDUMMAL DESOM, MANANTHAVADY TALUK. ``` ``` BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1BEEVI D/O AMMAD, NANGOLI HOUSE, PERAMBRA P.O, PURAVOOR AMSOM, MUTHUVANNACHA DESOM, KOYILANDY TALUK. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ``` ``` SRI SANAL P RAJ,PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.R.P NO.4398/2007 ``` ``` 2 ``` ## O R D E R This revision has been preferred against the judgment in Crl.A.No.268/2005 dated 3.11.2006 on the file of the II Additional Sessions Court, Kozhikode (for short ‘the appellate court’), confirming the judgment in C.C.No.192/2001 dated 9.1.2004 on the file of the Judicial First Class Magistrate Court I, Perambra (for short ‘the trial court’) 2. The revision petitioner is the accused. The first respondent filed a private complaint against the revision petitioner, his mother and sister alleging offences punishable under Section 498A, 406 r/w 34 of IPC. 3. The marriage between the revision petitioner and the first respondent took place on 31/5/1998 as per the Muslim religious rites. According to the first respondent, at the time of ``` CRL.R.P NO.4398/2007 ``` ``` 3 ``` the marriage, her father gave 35 sovereigns of gold ornaments to him and paid a sum of Rs.75,000/- to the revision petitioner for construction of the house. It was alleged that while she was residing in the matrimonial home, the revision petitioner misappropriated the gold ornaments and money and further the revision petitioner along with his mother and sister who were arrayed as accused Nos.2 and 3 harassed her both mentally and physically in order to get more dowry and money. 4. All the accused appeared at the trial court. After hearing both sides, charge was framed against them under Sections 498A, 406 r/w 34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the complainant, PWs 1 to 6 were examined and Exts.P1 and P1(a) were marked. No defence evidence was adduced. Considering the evidence on record, the trial court found the revision petitioner alone guilty for the offence punishable under Section 498A and 406 of IPC and he was convicted for the said ``` CRL.R.P NO.4398/2007 ``` ``` 4 ``` offence. He was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- under Section 406 of IPC and rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000 under Section 498A of IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for three months. The accused Nos.2 and 3 were found not guilty of all the offences charged against them and they were acquitted. The revision petitioner preferred appeal at the Sessions Court, Kozhikode challenging the conviction and sentence. The appellate court allowed the appeal in part. The conviction and sentence under Section 406 IPC was set aside. The conviction under Section 498A IPC was confirmed. The substantive sentence was reduced to rigorous imprisonment for one year with no change in the fine. The default sentence of three months was also awarded. Challenging the conviction and sentence passed by the courts below against the revision petitioner, under Section 498A of IPC, this Criminal Revision ``` CRL.R.P NO.4398/2007 ``` ``` 5 ``` Petition has been preferred. 5. I have heard Sri.T.G.Rajendran, the learned counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 6. The 1[st] respondent/complainant mainly relied on the evidence of PW1 to 3 and 6 to prove her case and to fix the culpability on the accused. PW1 is the complainant herself. PW2 is the father of PW1. PWs 3 and 4 are the independent witnesses. PW1 deposed that after the marriage for the initial period of six months, the relationship was smooth, but thereafter the revision petitioner started to abuse and torture her physically. She said that she was not provided the care she needed from her husband at the time of delivery of the child and that after delivery she was not taken to her matrimonial home. She further deposed that she went to her matrimonial home in January, 2000 and since then, the revision petitioner used to harass her telling that she was not beautiful enough and ``` CRL.R.P NO.4398/2007 ``` ``` 6 ``` that the dowry given was not sufficient. She also deposed that on 23/11/2000, the accused Nos.2 and 3 took her to her house and left her there. She deposed about a specific incident that has happened on 9/12/2000. According to her, on 9/12/2000, the revision petitioner came, demanded money, threatened and abused her as she was unable to meet the demand for money. She added that she was physically assaulted on that day by the revision petitioner. The evidence of PW1 gets corroboration from the evidence of PW2, 3 and 6. PW2 spoke that PW1 was constantly harassed and ill treated by the revision petitioner in her matrimonial home. He also spoke about the incident that was taken place on 9/12/2000. He deposed that at 11.00 a.m, on 9/12/2000, the revision petitioner physically assaulted PW1 by beating her. PW3 deposed that on 9/12/2000, at about 11.00 a.m he heard a commotion and went to the house of PW2 and he witnessed the revision petitioner abusing, threatening and physically assaulting PW1 demanding Rs.50,000/- as dowry. ``` CRL.R.P NO.4398/2007 ``` ``` 7 ``` PW6 also deposed that he heard a commotion and went to the house of PW2 and saw the incident. 7. Even though PWs1, 2 3 and 6 were cross examined at length, nothing tangible could be extracted in their evidence to create any shadow of doubt that they are not truthful witnesses. They have given definite, clear and consistent version of the crime. Their evidence inspires the confidence of the court. Both courts below concurrently believed their testimony and found that their evidence is sufficient enough to attract the offence under Section 498A of IPC. This Court under the exercise of jurisdiction under Section 397 r/w 401 of Cr.P.C. is not expected to re-evaluate or re-appreciate the evidence. In Shlok Bhardwaj v. Runika Bhardwaj and Others [(2015) 2 SCC 721], the Apex Court has held that scope of revisional jurisdiction of the High Court does not extend to re appreciation of evidence. Since there are concurrent findings of the two courts below, this Court would be circumspect in invoking the ``` CRL.R.P NO.4398/2007 ``` ``` 8 ``` revisional powers under Sections 397 and 401 of Cr.P.C. It is only if the decision rendered by the two courts below can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully gone through the entire records, evidence and proceedings and judgments of the two courts below. I find no impropriety or illegality therein, warranting interference under the exercise of revisional powers vested with this Court. Hence, I hold that no interference is called for on the finding of guilt entered into by the court below. 8. The next question is sentence. The learned counsel for the revision petitioner submits that some leniency may be shown in the matter of sentence. The revision petitioner is a first time offender. It is a matrimonial dispute. Moreover he has been undergoing the ordeal of trial for the last 20 years. Considering all these aspects, I am of the view that substantive sentence imposed by the courts below can be reduced to four ``` CRL.R.P NO.4398/2007 ``` ``` 9 ``` months with no change in the fine and default sentence. In the light of the above findings, the conviction under Section 498A of IPC passed by the court below is confirmed. The revision petitioner/1st accused is sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.5,000/-, in default to suffer rigorous imprisonment for three months. The Criminal Revision Petition is allowed in part. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab