IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.A.No. 1051 of 2003() ----------------------------------- CC.235/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT(S): COMPLAINANT ------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY GOVERNMENT PLEADER MR.C.M.NAZAR RESPONDENT(S): ACCUSED ---------------------- MYDEENKANNU, S/O.MOHAMMEDU KANNU, SAFIA MANZIL, PETTANADA, BALARAMAPURAM, VENGANOOR DESOM, PALLICHAL VILLAGE. BY ADV. MR.M.M.HUSSAIN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1051 OF 2003 = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-III, Neyyattinkara in C.C.235/98. It is the case of the prosecution that the accused had married the complainant as per customary law on 29.12.1996 and at the time of marriage 35 sovereigns of gold and 18 cents of property had been given to her. After some time the husband started ill-treating the wife demanding more dowry as well as to sell the property and when there was refusal she was cruelly beaten and ultimately she has to leave the matrimonial home to her house. The Court below on a consideration of the evidence available found that the evidence is not sufficient to prove the cruelty and therefore acquitted the accused. It is against that decision the State has come up in appeal. Crl.A. 1051 OF 2003 -2- 2. The point that arise for determination in the appeal is whether the finding of the Court below that the evidence is not sufficient is liable to be interfered with? 3. At the out set I may like to point out that the Court is hearing an appeal against an acquittal. There are certain restrictions imposed on the Court as well and even if two views are available in appreciating the evidence the Court should not jump to the conclusion against the accused. 4. Now, I will first refer to the documentary evidence in this case. Ext.P1 is the marriage certificate which would prove that they got married on 29.12.1996. Ext.P2 is a letter addressed by the defacto complainant to her father intimating that her life in the matrimonial home is not very happy and therefore she must be rescued from there. Ext.P3 is the First information Report registered on the basis of Ext.P4 complaint which is preferred by the wife against the husband before the Vanitha Commission. In the complaint to the Vanitha Commission which is marked as Ext.P4 allegations are made against cruelty on the ground of demanding more money. Ext.P6 is the deposition of the accused before the Sub Divisional Magistrate Court, Thiruvananthapuram. Crl.A. 1051 OF 2003 -3- 5. Exts.D1 to D5 are the documents produced by the accused in this case. D1 is a letter written by the accused to the brother of the complainant asking for a loan of Rs.15,000/- and Ext.D2 is the reply sent to the same expressing the inability to give any amount. Ext.D3 is the application filed before the Thiruvananthapuram Family Court by the husband against the wife for restitution of conjugal rights on the ground that the wife without any lawful excuse is living separately. Ext.D4 is a letter produced by the complainant to the Mosque authorities whereby she would submit that she wants to get rid of the husband because he is not living in accordance with real Mohammedan faith. Ext.D5 is a letter written by the complainant to one of her friends namely Sabha H.M. Which had been returned as addressee was not available. 6. PW1 is the defacto complainant. She had spoken about the marriage and living together in the house of the wife for three days. She would further depose that 35 sovereigns of gold and 18 cents of land were given to the wife at the time of marriage. It is deposed that in January, 1997 there was a demand by the husband for some ornaments and the wife Crl.A. 1051 OF 2003 -4- stated that the husband need not sell the ornaments but can pledge the ornaments. But the husband had sold it and thereafter there had been recurring demand for ornaments and further dowry and an ultimatum was given to get him Rs.2,00,000/- from the matrimonial house. In the cross examination it is submitted that along with the husband his mother and grand-mother and also his brother were living. It is also submitted that the husband was not available on everyday in the house. She would also depose that when the members of the family came to take her back she had not taken any ornaments and the mother of the husband did not even care to make tea for them. 7. She had been cross examined. She had further stated that Ext.D1 is in her handwriting. She further deposed that Ext.D5 is also in her handwriting and it was at the instance of the husband she had written about their welfare. Now, it has to be stated in this case that the first letter is Ext.P2. Suppose there had been perpetual demand for dowry it would not have happened on one day and it would have been a continuous affair and therefore when the wife wants to get away from the matrimonial house and writes a letter to Crl.A. 1051 OF 2003 -5- her father to take her away she would have written about the cause for the same which is totally absent in Ext.P2. 8. The next document after Ext.P2 is the letter written by the husband to the brother of the complainant asking for a loan of Rs.50,000/- which is Ext.D1. It was submitted that it was written by the wife at the instance of the husband. A perusal of that letter would reveal that it has been written in a very submissive manner and the brother-in-law had only been intimated about the financial difficulties faced by him and it is even written that if he is not having money he should not bother to take a loan from somebody and send it. A reading of Ext.D1 letter would not show that there was a demand for money as such. It was only a request for getting some money. To this letter a reply is sent on 2.7.1997 intimating about the disability of the brother to raise money. 9. Then we find a document dated 24.7.1997 which is a petition for restitution of conjugal rights filed by the husband against the wife. It is thereafter only we find a letter is being addressed to the Vanitha Commission intimating about the cruelty etc. and it was on the basis of that letter this case has come up. It is also interesting to see that subsequent to the Crl.A. 1051 OF 2003 -6- filing of all these petitions she had sent a communication to the Mosque authorities for putting an end to the matrimonial life and the main ground alleged in the letter is that the husband is not living in accordance with the Mohammedan faith and therefore she wants to put an end to that matrimonial life and also mentioned about the ill-treatment of the husband. A mere ill-treatment of a husband will not constitute an offence u/s 498A. Cruelty for the purpose of S.498 IPC is specifically stated in the Section itself. The letter dated 2.11.97 does not contain one sentence regarding the demand of dowry or deprivation of ornaments by the husband of the wife. 10. Then last is Ext.D5. It is true that Ext.D5 letter was addressed to the friend of the complainant and it has been returned back and the address on the back of the inland does not give the full address of the sender. Whatever it may be, when PW1 was cross examined this has been put to her and she had admitted it. 11. The letter is dated 14.6.97, there is no complaint at that point of time. But what is attempted to be stated is that the husband had forced her to write such a sentence. It Crl.A. 1051 OF 2003 -7- can be seen that letter is written in a natural, normal style. Welfare of so many persons are contained in that letter. If a person is forced to write a letter the language of the letter would not be of that nature. Therefore the recital in Ext.D5 would show that all spoken to by PW1 is not truthful. So here is a case where we are having the documents Exts.P1,D1, D2 and D5 on one side and the first matrimonial reaction through the proper authorities were initiated by the husband against the wife for restitution of conjugal rights. A reading of the evidence of PW1 in the chief-examination would reveal as if that immediately after one week from the date of marriage it has been a hell of affair to continue in that matrimonial home. But she would say that her parents had come to that house on so many occasions. But under no circumstance she is even prepared to divulge anything in a letter written by her to the father in Ext.P2. So something is suppressed some where and therefore when the Court below finds that the evidence is not satisfactory to prove the cruelty as contemplated u/s 498A of the Indian Penal Code. It is not correct to interfere in this appeal especially in the back drop of these documents which has to be given more weightage than the mere ipsi dixit of the Crl.A. 1051 OF 2003 -8- complainant. Therefore I do not propose to interfere with the decision rendered by the learned Magistrate. The appeal is devoid of merits and therefore it is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 1051 OF 2003 -9- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1051 OF 2003 = = = = = = = = = = = J U D G M E N T 27th July, 2009