Kerala High Court
Vimala Devi vs State Of Kerala on 14 November, 2024
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Crl.Rev.Pet. No.1579 of 2014
2024:KER:84923
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 14TH DAY OF NOVEMBER 2024/23RD KARTHIKA, 1946
CRL.REV.PET NO. 1579 OF 2014
AGAINST THE JUDGMENT DATED 08.08.2014 IN CRA NO.140 OF
2011 OF ADDITIONAL DISTRICT & SESSIONS JUDGE - V, KOLLAM
CONFIRMING THE JUDGMENT DATED 14.03.2011 IN CC NO.374 OF 2004 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM
REVISION PETITIONERS/APPELLANTS/ACCUSED 2 TO 4:
1 VIMALA DEVI
D/O.JANAKY, SIVADASA SADANAM,
MUNDAKKAL WEST WARD, MUNDAKKAL VILLAGE.
2 SAJAYKUMAR
S/O.SIVADASAN, SIVADASA SADANAM,
MUNDAKKAL WEST WARD, MUNDAKKAL VILLAGE.
3 GOPAKUMAR
S/O.SIVADASAN, SIVADASA SADANAM,
MUNDAKKAL WEST WARD, MUNDAKKAL VILLAGE.
BY ADV SRI.M.T.SURESHKUMAR
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, 682031.
ADV.SRI. SANAL.P.RAJ-PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 14.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.Rev.Pet. No.1579 of 2014
2024:KER:84923
P.G. AJITHKUMAR, J
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Crl. Rev.Pet. No.1579 of 2014
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Dated this the 14th day of November, 2024
ORDER
Accused No.2 to 4 in C.C. No.374 of 2004 on the files of the
Judicial Magistrate of the First Class-I, Kollam, are the revision
petitioners. They were convicted for the offence punishable
under Section 498A read with Section 34 of the Indian Penal
Code, 1860 and sentenced to undergo simple imprisonment for a
period of three months and to pay a fine of Rs.5.000/- each.
They preferred an appeal and the Additional District and
Sessions Judge-V, Kollam, as per the judgment dated 08.08.2014
dismissed the appeal. Against the said judgment of conviction
and order of sentence this revision petition has been filed.
2. Smt.Rejitha was married to Sri.Pradeep Kumar who is
the 1st accused. The 1st petitioner-2nd accused is his mother.
Petitioners No.2 and 3-accused No.3 and 4 are his siblings.
Smt.Rejitha was examined as PW1 before the learned
Magistrate. The case arose on a complaint she had filed alleging
that she was subjected to cruelty by the accused in furtherance
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of their common intention and in pursuit of their demand for
more dowry. The specific allegations were that Rs.1,00,000/- and
35 sovereigns of gold ornaments given at the time of her
marriage were misappropriated by the accused. She was used to
be manhandled by the 1st accused, to which other accused aided
and on 10.10.2002 she was sent back to her house. One specific
instance of manhandling, alleged in the complaint, is that on
09.10.2002, the 1st accused beat at her forehead using a stick.
3. The 1st accused did not appear before the trial court.
He remained absconding. Accused Nos.2 to 4 appeared and
denied the charge. Hence, the prosecution examined PWs 1 to 7
and proved Exts.P1 to P5. The trial court believed the evidence
tendered by PWs 1 to 3, who are the complainant and her
parents. The findings of the trial court leading to the conviction
were not disturbed by the appellate court.
4. Heard the learned counsel for the petitioners and the
learned Public Prosecutor.
5. The learned counsel for the petitioners would submit
that the allegations levelled against the accused in the complaint
is in one way and the evidence tendered before the court is in
another way. When the allegations in the complaint, which is the
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first statement are in total contradiction to the evidence
tendered by PW1 before the court, no conviction could be had,
but the courts below in total disregard of such telling
contradictions found the petitioners guilty. It is submitted that
even accepting the entire version of PW1 as true, there is no
evidence to find accused No.3 and 4 guilty of an offence under
Section 498A of the IPC. The learned counsel for the petitioners
submits that unless there are specific allegations which would
come within Explanation to Section 498A of the IPC, no
conviction is possible. It is pointed out that other than stating
that accused Nos.3 and 4 aided the other accused in
manhandling PW1, nothing surfaced in the complaint or in the
testimony before the court about the complicity of accused No.3
and 4. Urging the above aspects, the learned counsel canvased
for acquittal of the petitioners.
6. The learned Public Prosecutor would submit that when
accused Nos.3 and 4 actively aided the 1st accused to
misappropriate the gold ornaments, to make demand for money
and in assaulting PW1, Section 34 of the IPC gets attracted and
they are also liable for conviction.
7. The specific allegation in Ext.P1 complaint is that the
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gold ornaments and Rs.1,00,000/- given to PW1 at the time of
marriage, were entrusted with the 1st accused. It is alleged that
the 2nd accused asked to entrust the gold ornaments and money
with the 1st accused. In that regard, no role of accused Nos.3
and 4 has been mentioned in the complaint.
8. The specific incident of assaulting PW1 on 09.10.2002
is described in the complaint. That, she was stamped at her
abdomen by the 1st accused. Further allegation is that the other
accused aided the 1st accused. In what way, the other accused
aided the 1st accused has not been stated. During examination in
court also, PW1 did not explain what way accused Nos.2 to 4
aided the 1st accused to assault PW1 on 09.10.2002. As regards
the role of the 2nd accused in demanding more money and
sending PW1 to her house on 10.10.2002, the allegations in
Ext.P1 and the version in court by PW1 are consistent. PWs 2
and 3, the parents of PW1, deposed in court that as informed by
PW1 about the assault on her, they reached her matrimonial
home. They saw a swelling on the forehead of PW1. They were
told by PW1 about the assault. The information passed on by
PW1 to them may be hearsay information. But the circumstance
that immediately after the incident, PWs 2 and 3 were conveyed
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of the assault and when they reached, they saw PW1 with an
injury on her forehead makes their versions relevant. Therefore,
the said evidence is available to corroborate the oral testimony
of PW1 in court. Thus, the evidence concerning assaulting of
PW1 on 09.10.2002 by the 1st accused and further about sending
PW1 to her house on the next day stand proved.
9. The role of accused Nos.1 and 2 is proved beyond
doubt. However, the evidence is inconsistent and insufficient to
prove that accused No.3 and 4 had an active involvement in
either of the acts of alleged cruelty; namely, demand of more
money, manhandling of PW1 or sending her back to her home. In
the said circumstances, conviction of the 2nd accused as per the
impugned judgment cannot be interfered with in the exercise of
the powers of this Court under Section 401 of the Code. Whereas
the finding leading to the conviction of accused No.3 and 4
cannot be said to be based on any reliable evidence. Therefore,
the finding that accused No.3 and 4 are guilty is against the
evidence on record and liable to be reversed.
10. Accordingly, the conviction of the 2nd accused-1st
petitioner for the offence under Section 498A of the IPC is
confirmed. Conviction of petitioners No.2 and 3-accused No.3
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and 4 for the offence under Section 498A read with Section 34 of
the IPC is set aside and they are set at liberty.
11. The 1st petitioner was aged 73 years at the time of
conviction by the trial court, which was in 2011. She is now aged
above 85 years. Taking that into account, sentence imposed on
her is modified. She is sentenced to undergo imprisonment till
the rise of the court and to pay fine of Rs.10,000/-. In default of
payment of fine the 1st petitioner shall undergo simple
imprisonment for a period of one month.
This revision petition is allowed in part accordingly.
Sd/-
P.G. AJITHKUMAR
JUDGE
SMF
