IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.A.No. 18 of 2003() ----------------------------------- CC.639/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT(S): COMPLAINANT ------------------------- K.C.RAMACHANDRAN S/O. SANKARAN, HIGH SCHOOL ASSISTANT, RESIDING AT KANNAPURAM, KANUR DISTRICT. BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): ACCUSED ---------------------- 1. PUTHIYA PURAYIL BABURAJ, S/O. AMBU, EDAKKEPURAM NORTH, CHERUKUNNU, KANUR DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-11. R1 BY ADV.MR.SOJAN MICHEAL R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 18 OF 2003 = = = = = = = = = = = = = = = Dated this the 17th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the learned Judicial First Class Magistrate, Kannur in C.C.639/97. The unfortunate incident that had led to this litigation is the matrimonial discord between the husband and wife on account of the complaint of the husband that the wife has adulterous connection with the accused in this case. Both the complainant and his wife are teachers who are expected to be the role model for shaping the future of children. But here the averments are that on 18.12.1996 at about 2 p.m. the accused has committed adultery by having sexual intercourse with the complainant's lawfully wedded wife namely Narayani. The accused was aware that she was the wife of the complainant and the incident took place in the bed room of the complainant's house situated at Cherukunnu. The defence is that of a total denial. It is a well settled principle that in cases Crl. Appeal NO. 18 OF 2003 -:2:- relating to adultery the chance of having an eye witness is very very remote. That is why it is often said the story of seeing an adultery through a keyhole is only an imaginary one and it cannot be accepted. But adultery is a matter that could be proved through the surrounding circumstances emerging in a particular case. 2. In this case very strangely I find that the wife who is committed to have adultery with the accused is examined as a witness for the prosecution. This witness, to start with, had not supported the case of the prosecution regarding the allegation of adultery. She had denied the same. So the prosecution had declared her as hostile and was permitted to cross examine. In these matters also I have to state a cross examination of a witness by the party who examine her is not normally done when there is nothing absolutely before court to show that she is deviating from her previous statement. But here is nothing of that sort still the court has permitted cross examination. 3. There are two letters Exts.P1 and P2. Ext.P1 is a letter written in red ink and some of the portions are torn and there is no indication in that letter that the accused has Crl. Appeal NO. 18 OF 2003 -:3:- connection with the lady. Then the trump card is Ext.P2. Ext.P2 is produced to show that the wife had admitted her sexual connection with the accused. But PW3 herself would depose before court that unless Ext.P2 letter is written and given to him, the husband has threatened that he will break the Thali and throw it away and therefore in order to sustain the marital relationship she was forced to write that letter. It has to be remembered that the statement is given by a witness who is summoned by the prosecution to support the case of the prosecution and that evidence is a matter which has to be considered in that perceptive and if it has gone against the person who had summoned then he has to blame his fate and not otherwise. Therefore at that time in cross examination also the evidence of PW3 does not support the case of the prosecution. It is in cross examination she had given some versions which also does not support the case of the prosecution and she would further state that PW2 had no work and he is helped by the complainant, and when it was resisted by the wife namely PW3 he has deposed against her. So these are all answers brought out by examining a witness by the prosecution itself. Crl. Appeal NO. 18 OF 2003 -:4:- 4. Then strangely thereafter I find another examination called further chief examination and a document is introduced and marked as Ext.P3. Now in that further chief examination she is made to say that she had written Exts.P1 and P2 of her own and the earlier version given by her is false. At the out set I may like to state that when the prosecution examines a witness and when the witness turns hostile to the prosecution the methodology is to put leading questions to him or her as contemplated u/s 154 of the Evidence Act and thereafter he is considered to be a witness not supporting the case of the prosecution therefore a question of further chief examination in such circumstances will never arise if she had been declared hostile. So these are all subsequent developments that had taken place and therefore the procedure adopted by the Court below is totally incorrect. Secondly it has to be stated that whether the evidence of this witness who goes on changing from one story to the other can be believed to convict the person who is charged for a very serious offence like adultery. Therefore the evidence of PW3, I feel that instead of supporting the prosecution destroyed the case of the prosecution and any amount of evidence Crl. Appeal NO. 18 OF 2003 -:5:- attempted to be adduced by recalling her and putting further questions in the chief examination cannot be accepted. It is also very strange that a letter is written in the form of Ext.P3 stating that husband will win the case and it is like that it has ended. I am afraid that the Court cannot accept these types of statements and documents in a case of this nature, when the evidence of the other witnesses as discussed and found by the Court below are also not of reliable, especially in the back drop and therefore the order of acquittal does not call for any interference and so the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 18 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 18 OF 2003 = = = = = = = = = = = J U D G M E N T 17th August, 2009