State of Kerala v. Omana and Sivanandan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936** ## **CRL.A.No. 1264 of 2004 ( )** **--------------------------AGAINST THE ORDER/JUDGMENT IN CC 170/1999 of J.M.F.C., MANNARKAD DATED 16-10-2003** ## **APPELLANT(S)/COMPLAINANT:** **------------------------------------------------** **STATE OF KERALA,REP.BY S.I.OF POLICE SUB INSPECTOR OF POLICE, MANNARKKAD THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.R.GITHESH** ## **RESPONDENT(S)/ACCUSED:** **--------------------------------------------** ## **1. OMANA,W/O.ANANDAN** **W/O.ANANDAN, PULAKKAL VEEDU, KOTTIYODE THENKARA.** ## **2. SIVANANDAN, AGED 31 YEARS,** **S/O.BALAKRISHNAN, PULAKKAL VEEDU, KOTTIYODE THENKARA.** **R1 & R2 BY ADV. SRI.K.RAMAKUMAR (SR.) R1 & R2 BY ADV. SRI.S.M.PRASANTH R1 & R2 BY ADV. SMT.AMMU CHARLES R1 & R2 BY ADV. SRI.G.RENJITH R1 & R2 BY ADV. SMT.ASHA BABU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ## **========================= Crl.Appeal No.1264 of 2004** ## **============================ Dated this the 13[th] day of November, 2014** ## **J U D G M E N T** This appeal has been instituted under Section 378(3) of the Code of Criminal Procedure, by the State of Kerala to impugn the judgment dated 16.10.2003 of the Judicial First Class Magistrate's Court, Mannarkkad, Palakkad in C.C No.170 of 1999, whereby the accused in that Calendar Case have been acquitted by the court below. The Calendar Case arose out of the final report/charge sheet submitted by the Sub Inspector of Police, Mannarkkad in Crime No.16 of 1999 against the two accused in that case alleging offences punishable under Section 498A r/w Section 34 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. 2. The brief of the allegations against the accused is that on 12.07.1998, accused No.2 (A2) had married PW-1 and that after marriage they were living together as husband and wife in the house of accused No.1 (A1), who is the wife of the younger brother of A2's father, as A2 was living in the house of A1 and CRL.A.1264/04 - : 2 :- her husband (A2's father's younger brother) and that the accused demanded additional dowry amount of Rs.5,000/- and additional gold ornaments of 5 sovereigns and had started to ill treat PW-1 both mentally and physically and that PW-1 came to know about the illicit relationship between A1 and A2 and that she was taken to her parental home by A2 and that the dowry amount of Rs.20,000/- and gold ornaments coming to 20 sovereigns which she got at the time of marriage were destroyed by A1 and A2. Before the court below, PW-s 1 to 9 had adduced evidence as prosecution witnesses and Exts.P1 to P4 were also marked from the side of the prosecution. The defence had not adduced any oral or documentary evidence. The court below framed two issues for its consideration, viz, 1) whether the prosecution has succeeded in proving the charges levelled against the accused. 2) what is the order as to punishment. 3. After an exhaustive analysis of the evidence adduced by the prosecution, the court below came to the considered conclusion that PW-1 (defacto complainant - wife) has raised wild allegations against the accused even to the extent of alleging that there is illicit relationship between A1 and A2 and that apart CRL.A.1264/04 - : 3 :- from PW-1's self interested testimony, there is no material evidence or compelling attendant circumstances to believe the veracity of this extreme allegation. That further PW-1 alleged that A1 used to be in the possession of demonic spirit and at that time she used to attack anyone who used to go beside her including her husband and that A2 alone could go near her during such time in the night and A1 and A2 were living as husband and wife in the same house in which A1's husband and PW-1 also were living. The court below opined that this is not a believable aspect based on the evidence adduced as well as the attendant circumstances and further that there is wide contradiction between the depositions of PWs 1 and 3. It is further held by the court below that there was no sufficient proof to come to the conclusion that the nature of the harassment and cruelty said to have been suffered by PW-1 is such as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life or is one coming within the provisions envisaged in Section 498A of the IPC. That PW-1 has categorically admitted that she has not received any external injuries and that there is no medical evidence suggesting any CRL.A.1264/04 - : 4 :- injury or wound suffered by PW-1. In this view of the matter ,the court below came to the considered conclusion that both the accused are entitled to the benefit of doubt with regard to the offence alleged against them and accordingly, held that the prosecution has not succeeded in proving the charges levelled against the accused. In this view of the matter, the court below, by the impugned judgment, held that accused are not guilty and they were ordered to be acquitted under Section 248(1) of Code of Criminal Procedure. It is this judgment of the court below rendered in C.C No.170 of 1999 that is impugned by the State of Kerala in this Criminal Appeal. 4. Heard the learned Public Prosecutor and the learned counsel appearing for the respondents (A1 and A2). Both sides had elaborately dealt with the oral and documentary evidence adduced in this case and had urged their respective submissions 5. The main plank of the case set up by PW-1 is that A1 and A2 had demanded Rs.25,000/- as dowry amount and 25 sovereigns of gold ornaments from the parents of PW-1, in connection with the proposed marriage between A2 and PW-1. That the parents of PW-1 could give only Rs.20,000/- as cash and CRL.A.1264/04 - : 5 :- 20 sovereigns of gold ornaments and that they could not give anything more than this and that this was accepted by the accused. That the engagement of the marriage was held on 07.06.1998 and that the marriage was solemnized on 12.07.1998 as per the customs of the community to which the spouses belong. That neither PW-1 nor her parents had ever seen the parents of A2 and that the entire responsibility for the marriage of A2 was done at the behest of the husband of A1, who is the younger brother of A2's father, as well as by A1, who is the wife of the younger brother of A2's father. That immediately after the marriage on 12.07.1998, A2 and PW-1 started their life as husband and wife, in the house of A1 and her husband. That the accused had repeatedly demanded PW-1 to pay the additional amount of Rs.5,000/- as cash as well as the additional gold ornaments of 5 sovereigns and that in this regard she was constantly mentally and physically harassed and harmed by the accused etc. That A2 and A1 were having illicit relationship and that they were actually living together in that house as husband and wife and that in the nights A1 used to exhibit behavior based on demonic spirit possession and that no one could approach A1 CRL.A.1264/04 - : 6 :- during such times in the night, except A2 and that both the accused used to inflict such cruelty and harassment on PW-1 demanding for the above said extra amount and gold ornaments. That ultimately since her parents could not pay the above said amount and the extra gold demanded, A2 had taken her to her parental home and left her there on 16.09.1998. Though it is the specific case of PW-1 that A2 had taken her and left in her parental home on 16.09.1998, Ext.P1 First Information Statement was given for the first time only as late as on 02.01.1999. There is obviously a delay of above 3 ½ months between the date on which she is said to have been left in her parental home due to the alleged cruelty and the date on which the First Information Statement is given by PW-1. There is no explanation for this delay either in the statement given to the police or in the depositions given by PW-1 as well as by PW-2 and PW-3, who are the brother and mother respectively of PW1. The Apex court in long line of decisions as in **Kishan Singh V Gurpal Singh and Others** reported in **2010(8) SCC 775** and such other cases has consistently held that in case there is delay in lodging FIR, the court has to look for a plausible explanation CRL.A.1264/04 - : 7 :- for such delay and in the absence of such an explanation the delay will be fatal. In the instant case the allegations raised by PW-1 especially about the way she was treated in the matrimonial home is very serious. PW-1 even goes to the extend of saying that there was an illicit sexual relationship between A2, her husband, and A1, who is the aunt of A2. PW-1 makes serious allegations about the way she was ill treated there and if PW-1 had been driven to this extreme situation of being forced out of the matrimonial home and of having been taken to her parental home by her husband on 16.09.1998 based on such cruelty, then, the ordinary course of conduct on her part would have been to respond immediately, at any rate, without much delay and to set in motion the criminal law process. There is no explanation either in the First Information Statement or in any of the other statements given by her to the police or in her deposition before the court below as to any credible reason for the said long delay in lodging the First Information Statement. On the other hand, there is not even a whisper in PW-1's deposition as to the delay or as to the reasons thereof. There are other attendant and compelling facts and circumstances in this case, which will be CRL.A.1264/04 - : 8 :- dealt with later in this judgment, which would also support of the conclusion of this Court that the delay in lodging the First Information Statement in this case is fatal. Therefore, this Court is constrained to hold that in the facts and circumstances of this case, the delay of 3 ½ months is not only long but also quite unexplained and this raises strong doubts about the credibility of the allegations raised by the de facto complainant. 6. The main plank of the prosecution case is that the accused had demanded 25 sovereigns of gold and Rs.25,000/- in case from the parents of PW-1 and that they could give only 20 sovereigns of gold and Rs.20,000/- in cash and that the accused were frequently inflicting cruelty on PW-1 by demanding the extra 5 sovereigns of gold and extra cash of Rs.5,000/- from the parents of PW-1. Whereas the allegation in the final report/charge sheet in this case is that PW-1's parents had given 18.5 sovereigns of gold ornaments to her at the time of marriage. PW-1 in her deposition, on the hand, stated in chief examination that though the demand was for 25 sovereigns of gold and Rs.25,000/- in cash, her parents could give only 20 sovereigns of gold and Rs.20,000/- in cash. It is clearly stated CRL.A.1264/04 - : 9 :- that she was wearing the entire 20 sovereigns of gold in the marriage function. But, on the other hand, in cross examination, PW-1 has stated very clearly that she was given 12 bangles of one sovereign each, one chain weighing 4 sovereigns, one necklace of 2 sovereigns, ear rings of 3 sovereigns and two rings of ½ sovereign each. Thus, the specific and meticulous oral evidence of PW-1 given at the time of her cross examination before the court below is that she was actually given gold ornaments totally weighing 22 sovereigns of gold at the time of marriage and she was wearing the said gold ornaments. PW-3, who is the mother of PW-1, was examined as a prosecution witness and in chief examination, PW-3 has also reiterated the version that the accused had demanded 25 sovereigns of gold and Rs.25,000/- in cash and that they could give only 20 sovereigns of gold and Rs.20,000/- in cash at the time of marriage and that the entire harassment and cruelty were inflicted demanding for the extra 5 sovereigns of gold and the extra cash of Rs.5,000/-. But, in the evidence given by PW-3, at the time of her cross examination before the court below, it is clearly and cogently stated that the parents had given to PW-1 CRL.A.1264/04 - : 10 :- for her marriage 12 bangles, one chain of 3 sovereigns, 2 chains of 3 sovereigns each, one necklace, 2 ear rings of 1.5 sovereigns each and one ring of 1.5 sovereigns. Though PW-3 has not explicitly stated in her cross examination that the aforementioned 12 bangles are each weighing one sovereign and that the necklace is of 2 sovereigns, from the evidence given by PW-1 herself, it would be clear that the 12 bangles were having weight of one sovereign each and that the necklace was having weight of two sovereigns . Thus, on a reasonable construction of the evidence given by PW-3, it would come out in cross examination that the total gold ornaments given to PW-1 at the time of marriage comes to 27.5 sovereigns of gold. On the one hand, the admission of PW-1 is that she got 22 sovereigns of gold, whereas her own mother (PW-3) would say that PW-1 was given 27.5 sovereigns of gold by her parents at the time of her marriage. When the main plank of the prosecution case against the accused is that the accused had demanded 25 sovereigns of gold and that the parents of PW-1 could give only 20 sovereigns of gold and that the entire harassment and cruelty arose due to the demand for the short fall of 5 sovereigns of gold, the clear CRL.A.1264/04 - : 11 :- cut admission of PW-3, the mother of PW-1 that PW-1 was given 27.5 sovereigns of gold at the time of marriage assumes great significance. In the considered opinion of this Court, the aforementioned clear cut admission of PW-1 and PW-3, would cut at the root of the case of the prosecution. Therefore, the allegation raised in the prosecution version that the accused have consistently demanded for the short fall of 5 sovereigns of gold so as to get the originally demanded 25 sovereigns of gold, should fall to the ground. Then the only subsidiary issue is as to whether there was a consistent demand for the short fall in the cash amount of Rs.5,000/- as alleged by the prosecution. When the main plank of the prosecution case is based on the story of the demand for the excess 5 sovereigns of gold is not believable or credible, this Court is also constrained to hold that the version of the prosecution that there was a consistent demand for the extra cash of Rs.5,000/- and that this led to the instances of cruelty etc. cannot be taken seriously and the allegations cannot be taken as credible or believable in the light of the aforementioned attendant facts and circumstances. 7. In this case, the main thrust of the allegations raised CRL.A.1264/04 - : 12 :- against the accused is based on projected case that the entire disputes arose out of the demand for five sovereigns of gold. Therefore, the discrepancies in the description of gold ornaments cannot be merely brushed aside as one attributable to loss of memory or due to such other reasons. More over PW-1 and PW-3 are ladies and ordinarily it would be safe to presume that ladies could have a definite and precise knowledge of the jewelery items, especially about those given at the time of marriage. Therefore, the admission made by PW-1 and PW-3 about the exact details of the gold ornaments, cannot be brushed aside as merely attributable to mistakes or other factors. 8. There is only a vague averment in Ext.P1 First Information Statement given by PW-1 that the cash amount of Rs.20,000/- and the gold ornaments of 20 sovereigns that she received, were destroyed by the two accused. There is no explanation either in the First Information Statement or in any of the statements given by PW-1 or her immediate family members to the police or in the evidence tendered by them before the court below as to whether accused has in any way misappropriated the above said alleged cash amount of CRL.A.1264/04 - : 13 :- Rs.20,000/- and the gold ornaments of 20 sovereigns. In the entire evidence given by PW-1 (de facto complainant), PW-2 (brother of PW-1) and PW-3, there is not even a whisper that the gold ornaments and cash were misappropriated by the accused. As to what exactly PW-1 meant in her averment in Ext.P1 First Information Statement that the cash and gold ornaments were destroyed by the accused, is not discernible to this Court. No attempt has been made by PW-1, PW-2 and PW-3 to tender any evidence that there has been any misappropriation of the cash and gold ornaments of PW-1. It is also interesting to note that though PW-1 would state in her evidence before the court below that A2 had taken PW-1 to her home and left her there on 16.09.1998 the specific case put forward by PW-1 in Ext.P1 First Information Statement is that she had gone to her parental home on 16.09.1998 and there is no whisper in Ext.P1 First Information Statement that A2 had taken her to her parental home and left her there on 16.09.1998. This aspect also throws strong light on the lack of credibility of the version given by PW-1. 9. It is to be further noted that the specific case of PW-1 CRL.A.1264/04 - : 14 :- in the evidence tendered by her before the court below is that though she has been beaten by the accused, she has not suffered any injury or wound and that she has never been hospitalized. Whereas PW-3 (mother of PW-1), would allege in her deposition given before the court below that PW-1 has suffered wound or injury during such instances. Further it is to be noted that in the elaborate version given by PW-1 before the court below, she has not even raised a whisper therein that PW-2 (her brother) and PW-3 (her mother) have at any time witnessed any action of the accused beating and assaulting PW-1. Not even a remote suggestion is made in that regard in the evidence given by PW-1. On the other hand, PW-2 and PW-3 has deposed before the court below that when they had gone to the house of the accused in which PW-1 was staying, they have directly witnessed the accused beating and assaulting PW-1. Such a case has never been put forward by PW-1 at any point of time. This raises serious doubts regarding the credibility and believability of the version given by the prosecution witnesses. In the elaborate version given by PW-1 she has not deposed before the court below nor is there any such case in Ext.P1 statement that CRL.A.1264/04 - : 15 :- accused had attempted to strangulate in her neck. On the other hand, PW-2 and PW-3 would depose that they had seen the accused strangulating PW-1 by her neck. The contradictions in such versions of PW-2 and PW-3 on the other hand cannot be said to be merely accidental or minor and this raises serious doubts about the believability of the versions of the prosecution witnesses. 10. PW-1 has gone to the extreme extent of alleging in her deposition given before the court below that A2 was having a consistent illicit sexual relationship with A1, who happened to be A1's aunt. Except the self interested testimony given by PW-1 in making this extreme allegation, there are no compelling attendant circumstances in the facts of the case to treat this allegation as true. The court below, who has seen the demeanour of all the witnesses, has come to the considered conclusion that this is absolutely preposterous and incredible. Therefore, this Court is constrained to say that this allegation cannot be countenanced at all. 11. It is also relevant to note that the specific case put up by PW-1 in First Information Statement is that A1 is the wife of CRL.A.1264/04 - : 16 :- the younger brother of A2's father. However, in the cross examination of PW-1 before the court below, she takes up a different case that A1 is not the wife of the younger brother of A1's father. It is not discernible to any reasonable person as to what exactly is the case set up by PW-1 regarding the relationship between A1 and A2 and if A2 is not related to A1 as projected in the deposition of PW-1, then, as to under what circumstances, PW-1 had agreed to stay with A2, who is her husband, after their marriage, in the house of A1. It is also to be noted that it is consistently admitted by PW-1, PW-2 and PW-3 that the parents of PW-1 had never discussed the proposal of marriage between PW-1 and A2, with the father and mother of A2. Therefore, the conflicting versions projected by PW-1 in Ext.P1 First Information Statement and subsequently in her deposition before the court below, would raise serious doubt about the credibility of her allegations. This is more so in view of the extreme nature of the allegations made by PW-1 about the alleged sexual illicit relationship between A1 and A2. It is also pertinent to note that PW-1 has stated in her cross examination that it is not correct to say that she had left the matrimonial CRL.A.1264/04 - : 17 :- home due to the cruelty inflicted by A1 and A2. 12. It is further pertinent to note that the version of PW-1 and PW-2 about the alleged demonic spirit behaviour of A1 is not even remotely whispered in Ext.P1 First Information Statement. Whereas for the first time, it is stated in the depositions of PW-1 and PW-2 that A1 used to behave out of such spirit possession problems, which is seen projected as a major cause of the alleged violence and discordance in the matrimonial home and it is even projected to the extent of alleging that during such time, A2 was always in the company of A1 even during nights etc. and that this had also led to frequent violence inflicted by the accused on PW-1, whenever she questioned it. If such a problem were the major source of the alleged violence and discordance in the matrimonial home, it does not stand to reason as to why such a significant allegation has not been even mentioned remotely by PW-1 in Ext.P1 First Information Statement. This also raises serious questions on the credibility of the allegations made by PW-1 and her family members. 13. Though in the First Information Statement as well as in the depositions of PW-1, PW-2 and PW-3, it is stated that cash CRL.A.1264/04 - : 18 :- amount of Rs.20,000/- was handed over, in connection with the marriage proposal, it is not stated either in Ext.P1 First Information Statement or in the depositions of PW-1 to PW-3 with any consistency as to exactly when the said payment was made and as to to whom the said payment was made. 14. In Ext.P-1 first information statement it is stated by PW1 that the cash amount of Rs. 20,000/- was handed over to A-2 on the day of marriage in the presence of one Sri.Kitta. However, the said Sri.Kitta is not examined as a witness in this case by the prosecution. On the other hand, PW-5, Sahadevan, in his cross examination, has stated that he had seen the money being handed over on the marriage day in the temple premises. PW-5 has not stated specifically as to whom the said money had been handed over and by whom. PW-5 has not dealt with this aspect in the chief examination. It appears that in the cross-examination, possibly on a query from the counsel for the accused, as to whether he had seen the handing over of any gold ornaments, PW-5 has stated that he does not know how much gold ornaments have been given, but that he has seen the money being handed over in the temple premises. When the specific CRL.A.1264/04 - : 19 :- case of PW-1 at the initial stage of giving the first information statement is that the money was handed over in the presence of one Sri.Kitta, non-examination of that person as a witness and the tendering of evidence by another person (PW-5) and that too in cross-examination that the money was handed over in his presence, etc. does not inspire much confidence in the over all evidence given by the prosecution in this behalf. But more importantly it is to be noted that neither in the first information statement nor in the evidence given by the prosecution witness, is there any specific case for the prosecution that the above said cash amount of Rs.20,000/- and the gold ornaments have been misappropriated by the accused or that PW-1 has unlawfully deprived of those properties in any manner. As stated earlier herein above, the only vague allegation in Ext.P1 F.I.statement is that the above said monetary amount and the gold ornaments have been 'destroyed' by the accused. It is not discernible as to what exactly is meant by the said version projected in the first information statement. As the prosecution witnesses do not have any specific case about any misappropriation or unlawful deprivation by the accused, in respect of the said property, this CRL.A.1264/04 - : 20 :- Court need not embark upon any further detailed analysis of the factual aspects on such matters. It is to be noted that it has come out through the cross examination of PW-2 that in the litigation which led to the maintenance claim of PW-1, instituted against A- 2, the dispute of the paternity of the child of PW-1 was raised by A-2. It is also discernible from the cross examination of PW-2 and PW-1 that there was an attempt on the part of the defence to strongly suggest that the discord between the spouses arose due to an alleged relationship of PW-1 with another boy. PW-1 had succeeded in the maintenance claim and in the appeal thereon. The aspects regarding the allegations of the disputed paternity as well as the alleged intimacy or relationship of PW-1 with another person, etc. which has been allegedly raised by accused No.2, has not been narrated either in the first information statement or in the chief examination tendered by the prosecution witnesses. These aspects are only discernible from the cross examination of PW-2 and PW-1. It could be that accused No.2 was harbouring suspicions, perhaps untenable and it would have led to frequent bickerings and quarrelsome fights between these spouses and this could have possibly created a CRL.A.1264/04 - : 21 :- situation of distress and fights between the spouses. So it is quite possible that there could be various other aspects, which led to the bickerings and bitter fights between PW-1 and A-2. So the discordance in the marital relationship could have thus occurred due to aspects, other than those alleged by the prosecution. 15. On a careful appreciation of the facts and circumstances emerging in this case based on the evidence adduced in this case, this Court is constrained to hold that the substratum of the prosecution has been demolished by the evidence in this case. 16. The Apex Court in the case **State of Rajasthan v. Darshan Singh @ Darshan Lal** reported in 2012(4) Supreme 72, has held as follows:- “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” ## In a later decision in the case **Pudhu Raja and another v. State** reported in (2013) 1 SCC (Cri) 430, the Apex Court 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 CRL.A.1264/04 - : 22 :- presumption of innocence”. 17. The trial court after an elaborate appraisal of the facts of this case has gone out from the evidence on record, has come to the considered conclusion that the prosecution has miserably failed to establish the charges against the accused and that the accused are entitled to acquittal. 18. The aforementioned findings and conclusions of the trial court as to the impugned judgment cannot be said to be unreasonable or perverse. This Court on an appraisal of the evidence on record and on other independent grounds also has come to the conclusion that the prosecution has failed to prove their charges against the accused. In this view of the matter there is no scope for any interference with the impugned judgment passed by the court below in this case. Therefore the appeal fails and the same is dismissed. Sd/ALEXANDER THOMAS, JUDGE vdv sdk+ ///True copy/// P.S. to Judge CRL.A.1264/04 - : 23 :-