Purushothaman And Ors vs State Of Kerala

The revision petitioners are the accused 1 to 3 in C.C.No.162/1998 on the file of the Judicial First Class Magistrate Court, Kunnamangalam and the

appellants in Crl.Appeal No.445/2005 on the file of the Court of Session, Kozhikode Division. The offence alleged against the accused is under

Section 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as 'the IPC').

The prosecution case in brief is that the accused being the brother and parents of CW2 Mukundan who is the husband of PW1 subjected her to

cruelty demanding more ornaments and money. PW1 complained that the accused 1 to 3 did not permit her to cohabit with her husband while she was

residing along with the accused 1 to 3 at her matrimonial house. She was referred to the mediation by PW5 and others and accordingly she was taken

to the matrimonial home on 15.4.1996. Thereafter, the accused 1 to 3 in furtherance of their common intention physically and mentally harassed her by

demanding more money and property from her.

On the appearance of the accused, the learned Magistrate framed charge against the accused under Section 498A read with Section 34 of the IPC.

The charge was read over to which the accused pleaded not guilty.

To bring home the alleged offence against the accused, the prosecution examined PWs.1 to 12 and marked Exts.P1 to P7 and Exts.D1 and D2 on

the side of the accused. CW2 Mukundan, CW3, 6, 7 and 11 were given up by the prosecution. CW17 reported no more. CW18 was not produced by

the prosecution as directed by the court. Hence his examination was dispensed with.

On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating

circumstances appearing in the evidence against them. The 1st accused stated that CW2 Mukundan was mentally ill at the time of his marriage with

PW1. PW1 was aware of the fact that CW2 was a mentally challenged person. The Doctor who examined CW2 advised PW1 that after the

marriage, the mental illness of CW2 would be cured and believing the advise of the Doctor, PW1 married CW2. The 1st accused maintained that they

did not harass PW1 as alleged by her. To prove the defence version, Ext.D1 Advocate notice and Ext.D2 reply notice were furnished.

The trial court on appreciation of the evidence convicted the accused 1 to 3 for the offence punishable under Section 498A read with Section 34 of

the IPC and sentenced them to undergo rigorous imprisonment for one year each and to pay a fine of Rs.2,000/- each and in default of payment of

fine to undergo simple imprisonment for three months each for the offence under Section 498A read with Section 34 of the IPC. Out of the fine

amount, an amount of Rs.3,000/- was ordered to be paid to PW1 as compensation under Section 357(1) of the Cr.P.C. In appeal, the appellate court

confirmed the conviction of the accused 1 to 3 under Section 498A read with Section 34 of the IPC. However, the sentence imposed on the 1st

accused was modified to simple imprisonment for six months and sentence against the accused 2 and 3 was modified to imprisonment till the rising of

the court. Further, the accused 1 to 3 were directed to deposit an amount of Rs.5,000/- each as compensation to PW1 failing which they shall undergo

simple imprisonment for one month each. Challenging the conviction and sentence, the revision petitioners are before this Court.

Heard Sri.Arjun Sreedhar, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Senior Public Prosecutor for the

respondent-State.

The learned counsel for the revision petitioners Sri.Arjun Sreedhar submitted that neither the averments in the complaint nor the evidence of PW1 is

sufficient to prove the ingredients of offence under Section 498A of the IPC. It is further contended that Ext.P3 complaint was only against the 1st

accused and the 2nd and 3rd accused were implicated unnecessarily. Elaborating on the submission, the learned counsel for the revision petitioners

submitted that the evidence of PW2 to PW5, PW8 and PW10 are hearsay in nature and are not admissible in evidence. It was further contended that

PW1 filed the present complaint on 10.11.1997 as a counter blast to C.C.No.402/1999 filed by the 1st accused against the relatives of PW1 for

committing house trespass.

On the other hand, the learned Senior Public Prosecutor submitted that the prosecution case is supported by the oral evidence of the witnesses and

the prosecution has succeeded in proving the case against the accused beyond reasonable doubt. The learned Senior Public Prosecutor further

submitted that the concurrent conviction and sentence imposed by the trial court is sought to be set aside in revision and unless and until it is shown

that the findings are perverse, it is not just and proper to set aside the concurrent findings rendered by the two courts below in revision.

PW1 married CW2 Mukundan on 28.4.1995 in accordance with the customary rites prevailing among their community and thereafter they lived

together as man and wife at Mullanparambath House in Kuruvatoor amsom along with accused Nos.1 to 3. PW1 filed a complaint on 10.11.1997

alleging that the accused 1 to 3 subjected her to cruelty demanding more ornaments from her. Her complaint is that the accused did not permit her to

cohabit with her husband at her matrimonial home. Accordingly, an attempt was made to settle the dispute through mediation by PW5 and others.

Consequent to mediation, she was taken to her matrimonial home on 15.4.1996. It is her case that even thereafter, the accused 1 to 3 had subjected

her to cruelty and the 1st accused even went to the extent of assaulting her. She would say that the accused 1 to 3 used to comment that proper

dowry was not given at the time of marriage and the ornaments which were given to her was meagre. Hence, she filed Ext.P3 complaint before the

police. The police forwarded the complaint for investigation and report under Section 156(3) of the Cr.P.C.

PW1 stated that her husband was a mentally challenged person and she came to know about his mental illness only after her marriage. According

to them, she tried her level best to stay at the matrimonial home and had tried her level best to show the best care and protection to her husband. It is

her case that the accused 1 to 3 did not permit her to cohabit with PW1 and were making every attempt to prevent her. She would say that they put

her in different rooms and the 3rd accused even went to the extent of sleeping on the door step to watch CW2. It is her case that the 1st and 2nd

accused brought her to her house much against her wish in October, 1995 whereupon she issued Ext.D1 notice requesting the accused to take her

back to the matrimonial home. Accordingly, she would say that there was a mediation on 15.4.1996 and consequent to the mediation, she was taken to

her matrimonial home. She would further say that the accused 1 to 3 ill-treated her thereafter and while so, the 2nd accused issued Ext.P1 notice to

her mother asking her mother to take her from the matrimonial home. PWs.2 and 3 the sister and brother of PW1 stated before the trial court

regarding the estranged relationship between the CW2 and PW1. PW4 one of the neighbours of the accused also supported the version of PWs.2 and

PWs.5, 8 and 10 were the mediators who intervened in the dispute. According to them, they settled the dispute.

It is a fact that the husband of PW1 was mentally challenged. During the investigation, his statement under Section 161 of the Cr.P.C. was

recorded. No investigation was conducted touching the mental illness of CW2. However, his statement was recorded by the police. During the trial,

CW2 was not examined presumably for the reason that he was not competent to testify before the court. His examination was dispensed with.

PWs.1, 2, 3, 4, 5, 8 and 10 adduced evidence to show that PW1's husband was not mentally stable. The accused 1 to 3 would contend that the mental

condition of CW2 was communicated to PW1 before her marriage and she agreed to conduct marriage with CW2 knowing fully well that CW2 was

suffering from mental illness. However, PW1 would say that she was not aware of the mental illness before her marriage and she came to know her

husband's mental illness after the marriage. She stated that she tried her level best to live with her husband at her matrimonial house but the accused 1

to 3 persistently denied her marital right to cohabit with her husband.

On going through the entire evidence, it is clear that PW1's husband was a mental patient at the time of her marriage. It is clear that the police did

not conduct any investigation touching the mental illness of CW2. It is not known as to whether CW2 had abstained from PW1 due to his mental

illness or the accused 1 to 3 actually prevented PW1 from cohabiting with her husband. Unless and until clear evidence was adduced to prove the

mental illness of CW2, it was rather unsafe to act upon the oral evidence of the witnesses to prove cruelty at the instance of the accused.

Ext.D1 notice dated 25.5.1996 sent on behalf of PW1 to CW2 did not reveal any cruelty at the instance of the accused 1 to 3. The only request in

Ext.D1 was to take PW1 back to the matrimonial home to resume conjugal rights. Ext.D1 is an indication that PW1 was willing to reside with the

accused in her matrimonial home. It has come out in evidence that the 1st accused preferred complaint against the relatives of PW1 on 06.07.1997 for

house trespass and the same is pending as C.C.No.402/1999. It is a fact that Ext.P3 complaint was preferred on 10.11.1997; whereas the complaint

pertaining to C.C.No.402/1999 was filed on 06.07.1997.

CW2 being mentally challenged, it was likely that PW1 was facing marital problems at her matrimonial home. It is the case of PWs.5, 8 and 10

that PW1 told them about her unpleasant experience at her matrimonial house. They had no direct knowledge regarding the ill- treatment at the

matrimonial house.

The term 'cruelty' which has been made punishable under Section 498A of the IPC has been defined in the Explanation appended to the said

Section to mean (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. In the present case, from a plain reading of Ext.P3 complaint filed by the complainant on 10.11.1997, it is evident

that the facts mentioned in the complaint even if it is taken on its face value, do not make out a prima facie case against the accused for having

dishonestly misappropriated the dowry received by them from PW1. In fact, PW1's husband was not examined before the court to prove her case. No

evidence was adduced to show that PW1 was given dowry at the time of marriage and there was any demand of dowry before the marriage. As

regards the applicability of Section 498A of IPC, there is not even a whisper of wilful conduct of the accused 1 to 3 in Ext.D1 notice to prove that

they harassed the complainant with a view to coercing her to meet any unlawful demand for dowry by them so as to attract the provisions of Section

498A of the IPC read with Explanation thereto. PW1 referred to mediation talk at the instance of PW5 and others to settle the dispute and

accordingly PW1 was taken to the matrimonial home. The allegation is that after the settlement, the accused 1 to 3 in furtherance of their common

intention harassed her demanding more dowry.

Section 498A of the IPC was introduced to prevent the menace of dowry death and a harassment to a woman at the hands of her husband or his

relatives. In the case on hand, PW1 had no complaint against her husband. He was not an accused. PW1 had no case that he had demanded any

dowry from her. PW1's consistent case was that her husband was suffering from mental illness and the accused 1 to 3 cheated her to marry him after

suppressing his mental illness. There is no evidence in this case to show that CW2 was actually suffering from any mental illness. No investigation

was conducted in this regard. Mental illness is a ground for divorce under the Hindu Marriage Act. The provisions under Section 498A of the IPC

should not be used as a device to settle the matrimonial disputes between the parties on account of mental illness of CW2. A matrimonial discord

between the husband and wife on account of mental illness is not an offence under Section 498A of the IPC. Mere allegation of demanding cash by

the accused in the absence of source from which the cash was brought was not sufficient to prove acceptance of dowry. Similarly one or two

incidents of unpleasant situation between the accused and PW1 are not sufficient to prove an offence under Section 498A of the IPC.

It is settled principle of law that the High Court can interfere in revision with concurrent findings of facts when there is a glaring defect in the

procedure or there is a manifest error of law or miscarriage of justice. In the case on hand, the trial court recorded findings overlooking vital evidence

adduced by the prosecution witnesses before the trial court. The conviction is not based on the evidence.

In the result, the criminal revision petition is allowed. The revision petitioners/accused Nos.1 to 3 are found not guilty of the offence under Section

498A read with Section 34 of the IPC and accordingly they are acquitted thereunder. Cancelling their bail bonds, this Court directs that they be set at

liberty. If any amount is deposited by the revision petitioners/accused Nos.1 to 3 during the pendency of the proceedings, the same shall be refunded

to the revision petitioners/accused Nos.1 to 3 in accordance with law. Pending applications, if any, stand disposed of.