IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 Crl.Rev.Pet.No. 675 of 2001() ----------------------------- CC.186/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... REVN. PETITIONER/DEFACTO COMPLAINANT: ----------------------------------------------------- SHAREEKA, D/o. AHAMMED KUTTY, CHRUVALLIKKAL HOUSE, MAMPAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/ STATE & ACCUSED: ----------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 31. 2. ABDUL RAZACK, S/O. UNNEENKUTTY, KAPPACHALIL HOUSE, KATTAPARA, MAMPAD, MALAPPURAM DISTRICT. 3. KADAVAN FATHIMMA, W/O. UNNEENKUTTY, PULIKKALODY, MAMPAD, MALAPPURAM DISTRICT. 4. UNNEENKUTTY, S/o. UNNY MOIDEEN, PULIKALODY, MAMPAD, MALAPPURAM DISTRICT. 5. HASEENA, W/o. MUSTAFA, .DO. .DO. BY ADV. SRI.K.M.SATHYANATHA MENON PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.R.P.No.675 of 2001 ========================== Dated this the 3rd day of March, 2008 ORDER This revision petition is directed against the judgment of acquittal passed by the trial court in a prosecution under Section 498 (A) read with Section 34 I.P.C. Petitioner is the defacto complainant/wife. Her case was that she was constantly harassed and tortured by her husband, his parents and sister at the matrimonial home. 2. Respondent No.1/accused No.1 had married the petitioner in April 1997. For about a month after the marriage, petitioner's husband had treated her well. But soon thereafter he started demanding more money and ornaments. Accused Nos.2 to 4, who are the parents and sister of her husband, also joined him in abusing and harassing the petitioner. She had informed her husband that her father had managed to raise sufficient money to provide ornaments worth 25 sovereigns and dowry of Rs.25,000/- at the time of her marriage after selling 22 cents of property that he had. She has got four other sisters younger to her, who are yet to be given in marriage. Petitioner's Crl.R.P.No.675/2001 2 father had married a second time after which she was being looked after by her uncle. In spite of all these facts being brought to the notice of her husband and the other accused, they continued to insist that unless and until she brought some more money and ornaments, she could not stay in the matrimonial home. 3. According to the petitioner, on March 15, 1998 she had requested her husband to permit her to go to her parental home for a short stay. She was abused and assaulted by her husband. He informed her that she need come back only if she brought money and ornaments. On the next day and the day after, the same kind of treatment was repeated. In fact on the next two days her husband went out for job after locking her in the bed room without giving any food. On March 18,1998 also the attitude of accused No.1 remained the same. On that day her husband asked her to prepare tea in the morning. But she was not able to even stand upon her feet. Her husband beat her ruthlessly. He tried to burn her hair. On that day also she was locked inside the bed room. She was released from the room when her father's brother and uncle came to visit her. She was taken to the Government Hospital, Nilambur, where she was Crl.R.P.No.675/2001 3 examined by the Doctor. There were injuries on her two ears and below the left eye apart from bruises all over her body. The police came and took her statement on March 22, 1998. The statements of the petitioner was marked as Ext.P1. Ext.P3 FIR was registered by PW7 Head Constable, Nilambur Police Station. PW6, Assistant Surgeon, prepared Ext.P2 wound certificate. 4. The prosecution had examined PWs.1 to 9. PW1 was the defacto complainant. PW2, the father of the defacto complainant and PW3, her uncle, spoke about the ornaments and money given to accused No.1 at the time of marriage. PW4, another uncle of the defacto complainant, had taken her from her matrimonial home to the hospital. PW5 was the neighbour. These were the main witnesses examined on the side of the prosecution. 5. The learned Magistrate took the view that the evidence of PW1 was not creditworthy and reliable. According to the learned Magistrate, the version given by PW1 in the court was totally contradictory to the version given by her to the Police in Ext.P1 F.I. Statement. Learned counsel for the petitioner has taken me through the depositions of the material witnesses. It is true that there are minor contradiction in the deposition given by Crl.R.P.No.675/2001 4 PW1. But it has come out in evidence that PW6, the Assistant Surgeon attached to the Government Hospital, Nilambur had examined PW1 on March 19, 1998 at about 6.50 p.m. and noted some contusions and other minor injuries on her body. The doctor had also recorded that PW1 had told him that she had sustained injuries as a result of the assault from her husband, his mother, sister etc. Curiously, the Police had recorded Ext.P1 statement only on March 22, 1998. It is true that the petitioner had not narrated the various incidents of harassment and torture at the hands of her husband and his parents at the matrimonial home in great detail while she gave Ext.P1 statement. As rightly pointed out by the learned counsel the petitioner has had hardly any education to her credit. She was the eldest of five daughters of her parents. Her father had sold 22 cents of property to raise 25 sovereigns of gold ornaments and dowry of Rs.25,000/- at the time of her marriage. Her father subsequently had married another woman and therefore the petitioner was at the mercy of her Uncle. According to the petitioner, she was being continuously harassed and tortured by the accused. 6. The learned Magistrate had chosen to give undue importance to some omissions and contradictions in the Crl.R.P.No.675/2001 5 deposition of PW1. He had not bothered to consider the peculiar situation in which PW1 was placed at the matrimonial home. Learned Magistrate had also found fault with PW9, the Investigating Officer, for not examining the neighbours of PW1 to prove the cruelty and torture meted out to her by the husband. But PW1 had stated in her deposition that even though she had cried aloud on many occassions, her neighbours did not come to her rescue because her husband and his relatives were at loggerheads with their neighbours. The evidence of PWs.2 to 4, in my view, corroborated the evidence of PW1 on material aspects. But I may add that the evidence of PW1 was not without blemish. There were contradictions which were of course minor in nature. It may not be fair or just, especially in a case of domestic violence, to insist for independent corroborative evidence. Some margin may have to be given to the testimony of the innocent victim. 7. In this context it may also be noticed that the accused No.1 had suffered an order of maintenance under Section 125 of the Code of Criminal procedure. Though he had challenged the said order passed by the Family Court, directing him to pay maintenance at the rate of Rs.350/- per mensum, it was Crl.R.P.No.675/2001 6 confirmed by this Court. Having regard to the entire facts and circumstances of the case, I have no hesitation to hold that the order of acquittal passed by the court below cannot be sustained especially, since the learned Magistrate had not discussed the entire oral and documentary evidence adduced by the prosecution in their proper perspective. 8. Therefore, the order of acquittal is set aside. The case is remitted to the court below for fresh disposal in accordance with law. It will be open to the parties to adduce further evidence. The parties shall appear before the court below on April 26, 2008. A.K.BASHEER,JUDGE dvs