IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 3306 of 2007() ------------------------------ CRL.A.NO.962/05 OF THE III ADDL. SESSIONS JUDGE (ADHOC) FAST TRACK COURT NO.1, THRISSUR. C.C.NO.517/01 OF THE JFCM COURT, CHAVAKKAD. REVN. PETITIONER(S): APPELLANT/ACCUSED (IN CUSTODY) --------------------------------------------------- BASHEER, S/O.VASU, CHURLIPARAMBIL HOUSE, CHERUKUNNINMEL HOUSE, PANCHAVADY, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENT/STATE ------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P. No.3306 of 2007 ------------------------------------------------- Dated this the 27th day of March, 2009 ORDER In this revision petition the petitioner assails a concurrent verdict of guilty, conviction and sentence imposed on him in a prosecution under Sec.498A IPC. Altogether, there were 2 accused persons. The 1st wife of the petitioner is the de facto complainant. She raised allegations of matrimonial cruelty of the culpable variety against the petitioner herein and his second wife. She preferred a complaint before the learned Magistrate which was referred to the police under Sec.156(3) Cr.P.C. FIR was registered alleging offences punishable under Secs.406 and 498A IPC. Investigation was completed and final report was filed by the police. On the basis of the final report, cognizance was taken of the offences punishable under Secs.406 and 498A IPC. 2. Both the accused had entered appearance. They Crl.R.P. No.3306 of 2007 -: 2 :- pleaded not guilty of the charges leveled against them. Thereupon, the prosecution examined P.Ws.1 to 3 and proved Ext.P1. No other evidence was adduced. 3. In the course of cross-examination of the prosecution witnesses and when examined under Sec.313 Cr.P.C., the accused denied the offences alleged against him. No defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing the offence under Sec.498A IPC against the petitioner herein. His wife/2nd accused was found not guilty and acquitted of all the charges leveled against her. As against the petitioner, the charge under Sec.406 IPC was held to be not proved and he was acquitted on that charge. 5. P.W.1 is the de facto complainant/first wife. P.W.2 is her mother and P.W.3 is her younger brother. Ext.P1 is the complaint lodged by P.W.1 before the learned Magistrate and referred to the police under Sec.156(3) Cr.P.C. 6. There is a sad tale of human misery in this case. The petitioner was a Hindu and P.W.1 owed allegiance to Islam. They fell in love. They contracted a marriage on 14/5/94. To Crl.R.P. No.3306 of 2007 -: 3 :- facilitate that marriage, the petitioner had embraced Islam and they lived as spouses for a fairly long period of time. Three children were born in the wed-lock and it appears that the husband was suspicious against his wife. He did not relish his wife interacting with other men. Nay, the allegation is that he did not even relish his wife/P.W.1 interacting with his own brother. After marriage, the petitioner has to shift his residence to the house of P.W.1. It was there that the petitioner’s brother is alleged to have come later to share the roof with him. 7. It is also admitted that after the 3rd child was born, disagreement between the spouses took a turn for worse. The petitioner started residing separately. P.W.1 did not have information about the whereabouts of the petitioner and it is allegedly during this period that he contracted a second marriage with the second accused. Taking advantage of the conversion of religion and the opportunity which such conversion afforded for a second marriage, the petitioner is alleged to have contracted his marriage with the 2nd accused. 8. P.W.1 did not know about the 2nd marriage for some period of time. The complaint Ext.P1 is filed shortly after she Crl.R.P. No.3306 of 2007 -: 4 :- came to know that the petitioner had contracted a second marriage with the 2nd accused. In the complaint, she alleged matrimonial cruelty of the culpable variety. An analysis of the complaint reveals that the following specific allegations were made: (i) At the time of marriage, 5 sovereigns of gold ornaments and Rs.5,000/- were handed over as dowry by P.W.1’s mother. After some period of marriage, the petitioner started demanding 10 sovereigns of gold ornaments and Rs.10,000/- more. When such demands were not heeded, the petitioner allegedly started behaving in an improper and violent manner to P.W.1. (ii) The petitioner threatened P.W.1 that he will contract another marriage if demands for further amount/ornaments were not met. Thereafter, he started separate residence. (iii) The petitioner who had threatened his wife that he will marry another woman if his demands for dowry were not met, did actually marry another woman after separate residence started. (iv) On 2/1/01, P.W.1 came to know of the second marriage. When P.W.1 questioned that relationship, she was assaulted. The petitioner walked away from the house. Crl.R.P. No.3306 of 2007 -: 5 :- Demanded 10 sovereigns and Rs.10,000/- and threatened that if the amounts were not given, the 2nd wife will be brought to the house and made to reside there. (v) On 3/7/01, the petitioner executed his threats. He brought the second wife to the house of P.W.1. The petitioner as well as the 2nd wife assaulted P.W.1. 9. Arguments have been heard. The learned counsel for the petitioner submits that the courts below grossly erred in placing implicit reliance on the oral evidence of P.Ws.1 to 3. Their evidence hangs in the air with nothing on the ground to support such evidence. In the very nature of things, their evidence must have been approached with great care and caution, contends the learned counsel for the petitioner. The learned counsel for the petitioner wants this Court to take note on the broad probabilities and the helpless plight of the petitioner. He had fallen in love with P.W.1 – a woman who belongs to another community/religion. He did not have his people to support him. He had converted to get married to her. As she could not return to his relatives, he was forced to live with his wife in the house belonging to her mother. The alleged improbable theory of demand for dowry and assault etc., must be Crl.R.P. No.3306 of 2007 -: 6 :- considered in this background, contends the learned counsel for the petitioner. 10. The learned counsel then contends that the time on the context in which the present allegations are raised may be taken serious note of. P.Ws.1 to 3 had very serious reasons to falsely implicate the petitioner. It is not seriously disputed that he had contracted another marriage. The complaint is lodged at a time when they came to know that the petitioner had re-married. Strong and compelling reasons are there for P.Ws.1 to 3 to speak falsehood against the petitioner and to implicate him, points out the learned counsel for the petitioner. 11. The learned counsel then submits that except the oral evidence of P.Ws.1 to 3 and the self-serving testimony of P.W.1, there is absolutely no material to support the allegations raised. It may be true that the matrimonial cruelty cannot be perceived by all and sundry; but that cannot dispense with the requirement of the quality of evidence that a court must insist before a verdict of guilty and conviction is entered in a criminal case. Inherently and on broad probabilities, the version of P.Ws.1 to 3 cannot inspire confidence, contends the learned counsel for the petitioner. The counsel contends that this is an unfortunate Crl.R.P. No.3306 of 2007 -: 7 :- case of a marriage which had started with great hopes breaking down on the basis of mutual recriminations. After bitter estrangement the petitioner had to resort to the option of remarriage permitted under the personal law. The estranged wife and relatives are raising false allegations of criminality. 12. I am persuaded to agree with the learned counsel for the petitioner. I note that P.Ws.1 to 3 are deeply interested. I note that they have serious disagreement with the petitioner after he committed the indiscretion of a second marriage forgetting all that happened earlier. Strong reasons are there for P.Ws.1 to 3 to entertain grouse against the petitioner herein and therefore the evidence deserves to be considered with great care and caution in a case like the instant one. 13. The learned counsel for the petitioner submits that the courts should not lose sight of the total improbability of the alleged demand for dowry. Except the version of P.Ws.1 to 3 there is nothing to render that version probable. The petitioner was virtually a dependent on P.W.1 and her people. He had shunned his people or they had shunned him obliging him to take up residence with P.W.1 in her mother’s house. The theory of a demand for dowry by such a helpless person must inherently Crl.R.P. No.3306 of 2007 -: 8 :- arouse suspicion. The point of time at which such allegation is raised for the first time must also generate reservation, contends the learned counsel for the petitioner. 14. The learned counsel for the petitioner submits that admittedly there was strain in the relationship between the spouses. Notwithstanding the fact that they were in love and the petitioner was willing to make the sacrifice of converting himself to Islam solely to get married to P.W.1, there were serious differences of opinion. This was so in spite of the fact that three children were born. The petitioner had taken objection to the behaviour, conduct and character of P.W.1, it is very evident. The spouses in spite of the fact that three children were born in the wedlock were residing separately for a period of about two years. It is in that context that the petitioner contracted the second marriage. 15. The learned counsel for the petitioner submits that it may have been improper, incorrect, inappropriate and indiscreet on his part to have contracted a second marriage. But it cannot be forgotten that the personal law applicable to the spouses permitted him to contract a marriage for the second time. His conduct may be indiscreet, improper or incorrect. Crl.R.P. No.3306 of 2007 -: 9 :- But it cannot be said that it is contumacious, illegal of culpable. It may be unfortunate that bigamous marriages are tolerated by our society at least for a section of the community. But when systems tolerate such second marriage the fact that he married again cannot by no stretch of imagination be held to amount to matrimonial cruelty of the culpable variety, submits the learned counsel for the petitioner. I have no hesitation to agree that, in the circumstances, the conduct of the husband marrying again does appeal to me also to be most improper, incorrect and inappropriate and even immoral. But the question is whether it can be held to be contumacious or culpable and would fall within the sweep of the expression willful conduct in Sec.498A IPC. 16. The learned counsel wants this Court to take note of the total improbability of the version regarding the alleged incident that took place on 3/7/01. If the version of P.Ws.1 to 3 were believed the petitioner had gone with his second wife to the house of P.W.1 where he had no legal rights to reside and had insisted that the second wife must also be permitted to reside there. When there was reluctance and disapproval he and his second wife are alleged to have assaulted P.Ws.1 and 2. Crl.R.P. No.3306 of 2007 -: 10 :- The learned counsel argues that the version cannot be swallowed without a pinch of salt. This will have to be considered along with the total absence of a prompt complaint and the total absence of any independent evidence to support or corroborate that version. The courts below appear to have disbelieved the version of the complainant about the incident on 3/7/01. At least in so far as the allegations against the 2nd accused are concerned, the court below have disbelieved the evidence of P.Ws.1 to 3. 17. I have considered all the relevant inputs. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this Court sitting as a court of revision considering the acceptability of conviction at the third tier of litigation. I take note of the fact that the trial court is at an obviously advantageous of this position in the matter of appreciation of evidence. 18. But all these do not deter me from holding that the more appropriate, more correct and more just conclusion in the given circumstances is to concede to the accused the benefit of doubt which is aroused on the basis of the totality of circumstances brought out in this case. I do unhesitatingly Crl.R.P. No.3306 of 2007 -: 11 :- concede to the accused the benefit of such doubt. The totality of circumstances does not inspire confidence in me that the petitioner is guilty of such acts which fall within the culpable “wilful conduct” made punishable under Sec.498A IPC. 19. In the result: (a) This revision petition is allowed. (b) The impugned verdict of guilty, conviction and sentence against the petitioner herein under Sec.498A IPC is set aside. (c) The petitioner is found entitled to the benefit of doubt. He is found not guilty and acquitted. (R. BASANT, JUDGE) Nan/ Crl.R.P. No.3306 of 2007 -: 12 :-