Ramla v. Aleema, Laila and Harris and State of Kerala (CRL.A No. 219 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** ## **CRL.A NO. 219 OF 2013** **AGAINST THE JUDGMENT IN CC 694/2010 OF JUDICIAL MAGISTRATE OF** ## **FIRST CLASS, NADAPURAM, KOZHIKODE** ## **PETITIONER/ COMPLAINANT :** ## **RAMLA,** **D/O.AMMAD, AGED 36 YEARS ECHATHORATHU VEEDU, VELIYODU AMSOM, KUYITHERI DESOM, VADAKARA TALUK,(VALAYALM POLICE STATION).** **BY ADV SRI.P.M.HABEEB** ## **RESPONDENTS/ ACCUSED & STATE :** - **1 ALEEMA, W/O.MAMMU, AGED 61 YEARS, NALLOLAKANDI HOUSE, VELLIYODE, KUYITHERI – 673 504** - **2 LAILA, W/O.HARRIS, AGED 31 YEARS, PATTANINTEVIDA HOUSE, KUYITHERI – 673 504** - **3 HARRIS, S/O.ABDULLA, AGED 37 YEARS, PATTANINTEVIDA HOUSE, KUYITHERI.** - **4 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 31.** **BY ADV.SRI.P.V.KUNHIKRISHNAN** **R4 BY SENIOR PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 219 OF 2013** 2 ## **JUDGMENT** Dated this the 24[th] day of August 2021 This is an appeal against acquittal preferred by the de facto complainant. The offences alleged against the accused were under Sections 406 & 498A r/w. Section 34 IPC. Originally there were four accused. However, since the first accused was absconding, the case against him was split up and the trial court proceeded against accused 2 to 4, who are respondents 1 to 3 in this appeal. 2. The case of the appellant was that she married the son of the first respondent on 09.04.1990 as per the custom prevailing in the Muslim community and that they lived together as husband and wife for 20 years. In the meantime, issues arose between them and the husband married another lady. It was further alleged by the de facto complainant that at the time of marriage, her parents had gifted her 30 sovereigns of gold ornaments which were entrusted with her husband and in-laws, who misused the same for their own purposes and thereafter, in furtherance of their common intention, mentally and physically harassed the de facto complainant to obtain more money and gold. On the basis of the above allegations, appellant filed a complaint before Judicial First Class Magistrate Court, Nadapuram. **CRL.A NO. 219 OF 2013** 3 The complaint was referred for investigation under Section 156(3) and a crime was registered as F.I.R.No.224 of 2010 of Valayam Police Station. After investigation, a final report was filed alleging offences under Sections 406, 498A read with S.34 of IPC against four accused. The case was numbered as CC.No.694/2010 on the files of the Judicial First Class Magistrate's Court, Nadapuram. 3. Since the 1[st] accused in the trial court was not available for trial, the case against him was split up and the trial court proceeded to consider the case against accused 2 to 4 who are respondents 1 to 3 herein. 4. In order to prove the prosecution case, PWs 1 to 6 were examined and Exts.P1 to P3 documents were marked. The defence examined DW1 and marked Exts.D1 to D19. 5. After analysing the facts and evidence arising in the case, the learned Magistrate found respondents 1 to 3 herein as not guilty and acquitted them under Section 248(1) of the Cr.P.C. 6. In this appeal filed under Section 378 of Cr.P.C, the learned counsel for the appellant Sri.P.M.Habeeb strenuously contended that the consideration and finding of the learned Magistrate is completely flawed in as much as the trial court failed to appreciate the nature of complaint that was filed by the de facto complainant and the evidence adduced by her as PW1. According to **CRL.A NO. 219 OF 2013** 4 the learned counsel, it was specifically mentioned in Ext.P1 complaint that on 08.07.2010, accused 2 and 3 had come to her house and insisted that she conveys her property and the house completely in the name of Sri.Hamsa (the 1[st] accused) and when she refused they harassed her by asking her to go and commit suicide. It was also alleged in Ext.P1 complaint that on 24.07.2010, accused 2 and 3 came to her house and threw the household articles kept there, apart from the food along with other utensils kept there. It is stated that when the de facto complainant tried to resist such actions, accused 2 and 3 assaulted and abused her. According to Adv.P.M.Habeeb, the aforesaid crucial aspects were omitted to be considered by the learned Magistrate thereby rendering the judgment under challenge as perverse and susceptible to interference in exercise of the appellate jurisdiction of this Court. 7. I heard the learned Public Prosecutor Adv.M.K.Pushpalatha on behalf of the State. There is no appearance for respondents 1 to 3. 8. At the outset, this Court reminds itself of the limited jurisdiction under Section 378 of the Cr.P.C. The scope of interference in an order of acquittal, in the exercise of appellate jurisdiction is limited. Interference with an order of acquittal shall be made only when the appellate court is satisfied that the judgment **CRL.A NO. 219 OF 2013** 5 under challenge is perverse. It is not available in the teeth of law to interfere with a judgment of acquittal merely on the ground that a different view is possible. In an appeal against acquittal, unless the judgement of the trial court is found to be perverse, the appellate court would not be justified in substituting its own views and reversing the judgement of acquittal. The expression ‘perverse’ has been explained to mean the findings of the subordinate authority not supported by evidence brought on record or those that are against law or those that suffer from a vice of procedural irregularity. It has also been observed by the Supreme Court that while considering an appeal against acquittal, the Appellate Court must bear in mind the double presumption available in favour of the accused. The first assumption is based upon the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty while the second presumption is based on the fact that a competent court having tried and acquitted the accused, the presumption of his innocence is further reaffirmed and strengthened by the judgement. Reference to **Gaya Din (D) through LRs. and Others v. Hanuman Prasad (D) through LRs. and Others** [(2001) 1 SCC 501] and **State of Kerala and Another v. Jayesh@ Jabar@ Babu and Another** ( ILR 2020 (2) Ker. 239) are apposite. **CRL.A NO. 219 OF 2013** 6 9. With the aforesaid proposition of law in mind, when the evidence adduced in the case is analysed, it can be seen that the substantive evidence before the court does not inspire confidence to come to a conclusion that respondents 1 to 3 herein had caused harassment to the appellant as contemplated under Section 498A of the IPC. Though in the complaint there are statements that may indicate some sort of harassment by the first and 2[nd] respondent herein, when it came to the substantive evidence adduced as PW1, her case was surprisingly different. It was stated during the crossexamination of PW1 that on 08.07.2010, when respondents 1 and 2 came to her house they created trouble by demanding the property to be written in favour of Sri.Hamsa. When the above evidence is considered in the background of the complaint, it can be seen that the evidence is not in consonance with the complaint except for stating that they came and overturned the meals kept there. In this regard, inconsistencies are looming large. In Ext.P1, it was stated that the food was overturned on 24.07.2010, while during evidence stage it was stated to have happened on 08.07.2010. Apart from the above, the nature of harassment, allegedly meted out also varies significantly. Thus the evidence is lacking to bring home the case of harassment as contemplated under Section 498A. The contention of the learned counsel for the appellant that the omission on the part of **CRL.A NO. 219 OF 2013** 7 the learned Magistrate to consider the evidence regarding the harassment meted out on 08.07.2010 has rendered the findings of the trial court as perverse is therefore not correct. On the contrary, the evidence of PW1 is inconsistent and lacks any probative value to bring home the guilt of the accused. 10. The learned Magistrate also proceeded to consider the evidence of PW2 who stated that the de facto complainant and her husband were living separately for the last five years. This crucial evidence given by the mother of PW1 cannot be disregarded. On an appreciation of the evidence adduced and the version of PW1 along with the other witnesses, this Court is also of the view that the allegation raised against accused 2 to 4 does not satisfy the ingredients of Section 498A. 11. As regards the offence of criminal breach of trust alleged against the accused, the learned Magistrate has found that there is no evidence to prove the date on which the gold ornaments were allegedly entrusted with A1 or the date on which A1 allegedly handed it over to A2. The finding of the learned Magistrate that the prosecution failed to prove entrustment of the gold ornaments cannot be held to be perverse in the nature of the evidence adduced before the court. 12. As has been observed by the learned Magistrate **CRL.A NO. 219 OF 2013** 8 relying upon the decision in **Preethi Gupta v. State of Jharkhand, [(2010) 7 SCC 667]** , while dealing with the cases of harassment against the husband and his relatives, the court must be circumspect and must take into account the pragmatic realities. According to me, the prosecution had miserably failed to prove the offences alleged against accused 2 to 4 and there are no circumstances warranting an interference with the judgement under challenge. The conclusions arrived at by the learned Magistrate cannot be faulted with and accordingly, this appeal shall stand dismissed. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **CRL.A NO. 219 OF 2013** 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE DATED 11.2.2021 TO THE PETITIONERS EXHIBIT P2 TRUE COPY OF THE NOTICE OF THE ADVOCATE COMMISSIONER DATED 20.3.2021**