IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 Crl.L.P..No. 1493 of 2008() --------------------------- CC.797/1999 of J.M.F.C.-I, ALAPPUZHA .................... PETITIONER/COMPLAINATNT: ------------------------------------- H. SABEENA, D/O. A.R. MUHAMMED HAMEED, SEBEENA MAHZIL, ALISSERY WARD, ALAPPUZHA. BY ADV. M/S.S.SANAL KUMAR & SMT.BHAVANA VELAYUDHAN RESPONDENTS: --------------- 1. NISAB, BRIGHT HOUSE, CIVIL STATION WARD, NEAR TO COLLECTORATE, ALAPPUZHA. 2. NAZEERA, BRIGHT HOUSE, CIVIL STATION WARD, NEAR TO COLLECTORATE, ALAPPUZHA. 3. KHALID, BRIGHT HOUSE, CIVIL STATION WARD, NEAR TO COLLECTORATE, ALAPPUZHA. 4. THAHA, BRIGHT HOUSE, CIVIL STATION WARD, NEAR TO COLLECTORATE, ALAPPUZHA. 5. NIYAS, BRIGHT HOUSE, CIVIL STATION WARD, NEAR TO COLLECTORATE, ALAPPUZHA. 6. STATE OF KERALA, REPRESENTED BY THE PUB.LIC PROSECUTRO, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.E.RAFEEK & SRI.GOKUL DAS V.V.H. FOR R2,3&5 R6 PUBLIC PROSECUTOR SMT. LALIZA THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISISON ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P. No.1493 of 2008 ---------------------------------------- Dated the 2nd day November, 2011 ORDER This petition is filed under section 378(4) of the Criminal Procedure Code by the complainant in a private complaint before the Judicial First Class Magistrate-I, Alappuzha, seeking leave of this Court to file an appeal against the judgment dated 6.11.2003 in C.C.No.797 of 1999 of the above trial court since the learned Magistrate by the above judgment acquitted accused Nos.1 to 3 and 5 to 6 in her complaint in which the offences alleged are under sections 498-A read with Section 34 IPC. 2. The case of the complainant is that the complainant and A1 are husband and wife who got married on 24.9.1995 as per the Muslim religious rites and a child was born in that wedlock and at the time of the complaint the child was residing with the complainant. A2 and A3 are the parents of A1 and A4 and A6 are the brothers of A1 and A5 is the uncle of A1. According to the complainant, at the time of the marriage, an amount of Rs.75,000/- and 50 sovereigns of gold ornaments were CRLP 1493/2008 2 given to the Ist accused and after the marriage, the accused started harassing her and subjected her to cruelty demanding more dowry of Rs.2 lakhs and 15 sovereigns of gold ornaments. According to the complainant, while she was pregnant, the accused subjected her to cruelty demanding more dowry. According to the complainant herself and her child were not cared and she was manhandled on 31.8.1997. The harassment was continued and thus according her, on 12.9.1997 accused Nos. 2 and 4 manhandled her demanding more dowry and took her in an autorickshaw to her house telling her that she should return with an amount of Rs.2 lakhs and gold ornaments. According to her, on 15.4.1998 when she returned to the house of the accused with her brother, A1 kicked her on her abdomen and beat her on her cheek and abused her brother and she was forced to remain outside the house and for following 13 days she was not even allowed to change her dress and harassed her. It is also the case of the complainant that on 29.4.1998 the accused attempted to kill her by pushing her into the well and threatened that she would not be allowed to live unless she obtained an amount of CRLP 1493/2008 3 Rs.2 lakhs and 15 sovereigns of gold ornaments. According to her, on 4.5.1998 all the accused together beat her and fisted her and denied food to her and after removing the gold ornaments of her and the child, she was taken to her house by accused Nos. 1 and 5. It is also alleged that on 28.5.1998, a complaint was given to the Deputy Superintendent of Police, Alappuzha, but herself and her brother were forced to sign an agreement on 15.7.1998 and the police has not taken any step to enquire into the complaint. According to her, thereafter she preferred a complaint in the trial court as CMP No.4511/98 which was forwarded to the police for investigation, but the same was rejected without conducting any investigation. Hence, she filed the present complaint alleging offence punishable under section 498-A read with 34 IPC. 3. On receiving the complaint, after conducting section 202 enquiry, cognizance was taken for the offence under section 498-A read with Section 34 IPC and on issuing summons, all the accused appeared before the court below and thereafter the complainant adduced evidence as PW1 and her brother was examined as PW2. On the basis of the above CRLP 1493/2008 4 evidence, as the Magistrate was of the opinion that there are grounds to proceed against the accused, and accordingly, a formal charge was framed for the said offence and the accused denied the same when the said charge read over and explained to them. As A4 was absconding, the case against him was split up and other accused pleaded not guilty. After framing the charge, PW1 was further cross examined and no other evidence was adduced from the side of the complainant. 4. After closing of the complainant's evidence, the accused were questioned under section 313 Cr.P.C and they denied the incriminating evidence against them. According to them, the marriage of PW1 with A1 was conducted by suppressing the first marriage of PW1. According to them, they came to know about the first marriage of PW1 only later and that her first husband was in Gulf. According to them, when the fact with respect to the first marriage of PW1 came to the knowledge of the accused, the complainant/PW1 ceased to cooperate with them and on her own will she went to her house. It is also relevant to note that A3 had stated that PW1 used to keep a diary where all events are correctly recorded CRLP 1493/2008 5 and that she is having the original diary while they are having the copy of the same. The accused had also stated that they had evidence. The 3rd accused himself was examined as DW1 through whom Ext.D1 Talak note was proved, wherein, he is an attestor, issued to PW1. DW2 was also examined to prove the first marriage of PW1, DW2 is none other than the first husband of PW1. 5. On the basis of the rival pleadings and materials, the trial court has formulated 3 points for its consideration. Finally, the learned Magistrate has found that the evidence of PW1 stands discredited while the case of the accused stands substantiated and consequently held that the case of the complainant is only to be rejected as not true and further found that the criminal prosecution was launched against the accused for the offence punishable under section 498-A of IPC from the despair of PW1 and her ill-will towards the accused, after the dissolution of the marriage. Accordingly, the accused 1 to 3 , 5 and 6 are found not guilty of the offence against them under section 498-A read with Section 34 of IPC. By the same judgment, the learned Magistrate has found that, CRLP 1493/2008 6 there is no circumstance or evidence to constitute the case against A4 and therefore, the case against A4 is not refiled. Thus, accused Nos. 1 to 3, 5 and 6 are acquitted under section 248(1) Cr.P.C and A4 is discharged. It is the above order of acquittal and discharge sought to be challenged by filing appeal for which leave of this Court is sought for. 6. I have heard Sri S.Sanalkumar, the learned counsel appearing for the petitioner and Sri E. Rafeek, the learned counsel for respondents 1 to 5. 7. The learned counsel for the petitioner/complainant strenuously submitted that the finding of the learned Magistrate is highly arbitrary and illegal. According to the learned counsel, even if the complainant has suppressed the first marriage as well as the factum of divorce of the same, the accused are liable to be as they have no licence or authority to inflict injuries on the complainant. According to him, the evidence of PWs 1 and 2 would positively prove the allegation against the accused and thus the evidence are sufficient to establish the harassment meted out against the complainant by the accused. Thus, according to the learned counsel, the CRLP 1493/2008 7 learned Magistrate ignoring the above evidence, opted to accept the version of the accused and accordingly, they are found not guilty. Therefore, the learned counsel submitted that it is a fit case to file an appeal against the acquittal, for which leave of this court has to be granted. 8. On the other hand, the learned counsel appearing for the contesting respondents submitted that absolutely there is no evidence, other than the deposition of PW1 who is inimical to the accused and her evidence is unbelievable and the learned Magistrate has rightly discredited her version. Thus according to the learned counsel, under the above factual circumstances, even if an appeal is entertained, there is no scope for any interference with the findings of the court below and the order of acquittal. 9. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the respondents 1 to 5 and I have carefully perused the judgment. In the light of the arguments advanced by the counsel for the petitioner as well as the respondents and in the light of the findings of the of the court below based upon the evidence and materials CRLP 1493/2008 8 referred to above , the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave to file appeal against the judgment sought to be impugned. Having regard to the facts and circumstances involved in this case, according to me, while considering this petition, this court need not go into the details of the controversy. On a scanning of the judgment of the trial court, it can be seen that the only evidence adduced by the complainant is that of her deposition as PW1 and her brother's evidence as PW2. As rightly observed by the learned Magistrate, there is no medical or documentary evidence to substantiate the allegations of harassment , either physical or mental. It is also relevant to note that the learned Magistrate has found that though it is alleged in the complaint and sworn statement, before the court that , she was subjected to cruelty and harassment demanding more dowry of Rs.2 lakhs and 15 sovereigns of gold ornaments, there is no evidence of her parents in support of such allegation. The learned Magistrate has found that , during cross examination PW1 has admitted that, an amount of Rs.2 lakhs was demanded for CRLP 1493/2008 9 starting a business for the Ist accused. It is also on record that the complainant has deliberately suppressed her first marriage with DW2 and though she was repeatedly cross examined on this aspect, she denied the same firstly but finally admitted the same as there was no other go. Similarly, the complainant has also suppressed the Talak by which the first husband divorced her. The learned Magistrate has categorically found that after the pronouncement of Talak on 9.3.98, the complainant has preferred a petition before the police, which was subsequently settled through an agreement between the parties, in the office of the Deputy Superintendent of Police, Alappuzhga and all the properties of PW1 at the time of marriage were returned to PW1. According to the learned Magistrate, it is thereafter a complaint was filed before the trial court, which was forwarded for investigation under section 156(3) Cr.P.C. In this juncture, it is also relevant to note that though the Police had registered a crime on receiving the complaint under section 156(3) Cr.P.C, they have referred the crime, consequently, the present protest complaint is preferred. Under the above factual background CRLP 1493/2008 10 and in the absence of any independent and other cogent evidence, the learned Magistrate refused to believe the version of PW1 and rejected her complaint against the accused. As I indicated earlier, on a scanning of the entire judgment, it can be seen that by assigning very proper and legal reasons, the learned Magistrate disbelieved the case of the complainant, especially, when she suppressed her first marriage with DW2 and their divorce thereon and also the fact of talak pronounced by A1 on 9.3.1998. The reasons given by the learned Magistrate in support of his finding, appears to be legal and correct and there is absolutely no merit to interfere with the same. In the light of the materials and evidence on record, which referred to by the learned Magistrate in his judgment, and in the light of the reasons given by the learned Magistrate, to discredit the version of PW1 and accepting the version of the accused, there is no compelling or substantial reason to interfere with the order of acquittal and to reverse the same. If that be so, I find no merit to grant leave as sought for in this petition so as to challenge the judgment of the trial court. CRLP 1493/2008 11 Therefore, this petition is devoid of any merit and accordingly the same is dismissed declining leave under section 378(4) Cr.P.C V.K. MOHANAN, JUDGE. kvm/- CRLP 1493/2008 12