Kerala High Court
Mohanan vs State Of Kerala on 7 March, 2025
Crl.Appeal No.2157 of 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.A NO. 2157 OF 2007
AGAINST THE JUDGMENT DATED 05.10.2007 IN SC NO.1044
OF 2006 ON THE FILE OF THE SPECIAL COURT FOR TRIAL OF
OFFENCE U/A 33/1989, THALASSERY.
APPELLANT/ACCUSED:
MOHANAN,
S/O. KRISHNAN,
AGED 50 YEARS,
COOLIE, KANKOL,
TALIPARAMBA TALUK.
BY ADV M.P.MADHAVANKUTTY
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
*2 M.MAANI
D/O. KANNAN PANICKER,
KALEESWARAM, POST KANKOL,
PAYYANUR, KANNUR DISTRICT, PIN: 670307
*(IMPLEADED AS PER ORDER DATED 03.02.25 OF CRL MA
1/25 IN CRLA 2157/2007)
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.03.2025, THE COURT ON 07.03.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.2157 of 2007
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C.S.SUDHA, J.
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Crl.Appeal No.2157 of 2007
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Dated this the 7th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.1044/2006 on the file of the
Court of the Special Judge for trial of offences under Act 33 of
1989, Thalassery, challenges the conviction entered and sentence
passed against him for the offences punishable under Sections
406 and 417 IPC.
2. The prosecution case is that on 29/07/1998, the
accused married PW1, a member of the Malayan community
suppressing his earlier two marriages and making her believe that
he was her lawfully wedded husband and thereafter sexually
exploited her and misappropriated gold ornaments, money and
other house hold articles belonging to PW1. Thus, as per the final
report/charge sheet, the accused is alleged to have committed the
offences punishable under Sections 427, 420, 493, 495, 496 IPC
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and Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC/ST
Act).
3. Crime no.183/2005, Peringome police station,
that is, Ext.P6(a) FIR was registered by PW9, the then Sub
Inspector, based on Ext.P6 complaint of PW1. The initial
investigation was conducted by PW11, the then Dy.S.P.,
Thalipparambu. Thereafter the investigation was taken over by
PW13, Dy.S.P., Thalipparambu, who on completion of the
investigation submitted the final report alleging the commission
of offences punishable under the above mentioned Sections.
4. On appearance of the accused before the trial
court, a charge under Section 420, 406, 493, 495, 496 IPC and
Section 3(1)(xii) and 3(2)(v) of the SC/ST Act was framed, read
over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW13
were examined and Exts.P1 to P14 were marked in support of the
case. After the close of the prosecution evidence, the accused was
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questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the
evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence. He submitted that
PW1 was well aware of his earlier relationships with PW5 and
PW12. It was with the full consent and knowledge of PW1 that
the marriage had taken place. There was never any concealment
of facts as alleged by PW1.
6. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused not guilty of the offences
punishable under Sections 420, 493, 495 and 496 IPC and
Section 3(1)(xii) and 3(2)(v) of the SC/ST Act and hence
acquitted him under Section 235(1) Cr.P.C. However, he has
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been found guilty of the offences punishable under Section 406
and 417 IPC. Hence he has been sentenced to rigorous
imprisonment for two years for the offence under Section 406
IPC and rigorous imprisonment for one year for the offence under
Section 417 IPC. He has been directed to pay compensation of
₹2,00,000/- to PW1 under Section 357(3) Cr.P.C. and in default
to simple imprisonment for three months. Set off under Section
428 Cr.P.C. has been allowed. The sentences have been directed
to run concurrently. Aggrieved, the accused has come up in
appeal.
8. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the appellant/accused by the trial court are sustainable or
not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that the trial court grossly erred in convicting
and sentencing the accused in the absence of cogent materials to
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support the prosecution case. PW1 was well aware of the
relationship of the accused with PW5 and PW12 and also that he
had children through them. The accused married PW1 as she
insisted on the same. There was never any misrepresentation or
cheating on the part of the accused. It was also submitted that
after Ext.P5 agreement by which the parties agreed to end their
relationship, PW1 again started living with the accused and
therefore, she has condoned/ratified all the earlier acts alleged
against the accused. Per contra, it was submitted by the learned
public prosecutor that the materials on record are sufficient to
prove the offences alleged against the accused. Merely because
PW1 admitted to have resided with the accused even after she
came to know about the relationship of the accused with PW5 and
PW12, would not mean that she had ratified or condoned the
criminal acts committed by the accused, which in law she could
not do also.
11. The crime was registered on the basis of a
private complaint filed by PW1 before the jurisdictional
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magistrate, which was forwarded under Section 156(3) Cr.P.C.
for investigation and report. In Ext.P6 complaint the allegations in brief is
as follows- the complainant, a part time sweeper at Sub Court,
Payyannur, married the accused on 29/07/1998 as per the rites
and customs prevailing in Malayan community, a scheduled tribe.
When the accused made the proposal to marry the complainant, he
made the complainant and her relatives believe that he was a
bachelor and that he had no relatives for initiating the marriage
and that he was all alone. Believing the words of the accused, the
complainant and family agreed to the marriage. The marriage
was solemnised on 29/07/1998 as per the rites and customs of the
community to which she belonged. The marriage ceremony was
performed in the presence of her relatives and the friends of the
accused. The marriage was registered before the Payyannur
Municipality. After the marriage, the complainant availed a loan
from the North Malabar Gramin Bank, Mathil Branch and gave an
amount of ₹15,000/- to the accused for starting a petty shop.
However, the business was closed down due to mismanagement
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by the accused. Thereafter the complainant arranged a job for the
accused in a cigarette company conducted by one Lakshmana
Shenoy at Payyannur. The accused was an alcoholic, extravagant
and an adulterous person. He never used to maintain the
complainant, but exploited her to the extent possible. By August
2003, the complainant came to know that the accused was
married to another lady, namely, Sarojadevi (PW5) hailing from
Alappuzha district and that the accused had been residing with
the said lady till 1998 and that in the said wedlock they have three
daughters. Her further enquiries revealed that the accused had
also married yet another lady, that is, PW12 Sathyabhama hailing
from Thrissur district, in which relation he has two sons. When
she questioned the accused about the said relationships, he
manhandled her resulting in their relationship becoming strained.
Thereafter the parties entered into an agreement by which they
decided to separate. After a few months, the accused again
approached the complainant and tactfully started residing with
her. He then started making demands for transferring her
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property in his name, to which demand she was not amenable.
The accused deserted her and left by taking several household
articles belonging to her. Pursuant to the same, she filed Ext.P6
complaint based on which Ext.P6(a) FIR was registered.
12. The complainant when examined as PW1 more
or less stands by the case averred in the complaint. According to
her, she married the accused only because he made her believe
that he was a bachelor and that he had no close relatives. PW1
deposed that she had studied only up to the Xth standard. During
1998, the accused who was a salesman of household articles came
to her house for the sale of such articles. PW1 had a defective
grinder which was entrusted to the accused for repair. The
accused repaired the grinder for her. Thus an acquaintance
developed between the parties. Thereafter, the accused expressed
his desire to marry her. The accused told her that he had no close
relatives; that he was a bachelor and that he was all alone.
Initially, though she did not believe the accused, he succeeded in
convincing and assuring her that he had no relations at all.
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Believing the statements made by the accused, the marriage was
solemnized as per the rites and customs of the community to
which she belonged. Thereafter they started residing together as
husband and wife. The accused did not have a job and therefore
as requested by him, she obtained a loan from the Gramin Bank
to enable the accused to run a bunk shop. Ext.P4 is the passbook
of her account maintained with the said bank. The loan amount
was handed over to the accused. For about two years the accused
conducted the bunk shop. Thereafter he sold it. At the instance
of PW1, the accused got a job as a driver in a tobacco company.
According to PW1, even then the accused was not providing her
with any amount for meeting the household expenses. While so,
one day when she took the shirt of the accused for the purpose of
washing, she got a letter from his shirt pocket, which letter was
stated to have been written by his father. In the letter it was
mentioned that the marriage of his niece was fixed and he was
asked to attend the marriage. When PW1 confronted the accused
with the letter, he denied the contents of the same, snatched away
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the letter and destroyed it. The relatives of PW1 decided to attend
the marriage of the niece of the accused. Accordingly, PW1 and
her neighbours went to attend the said marriage. It was then PW1
met PW5 and came to know that the accused had married her and
that he had three daughters in the said relationship. PW1 also
realised that the accused had parents, sisters etc. and that his
statements to her that he had no relatives and that he was a
bachelor were all false. Thereafter PW1 also came to know that
the accused had married PW12 Sathyabhama, and that in the said
relationship, he has two sons. The fact that the accused had
married twice was never disclosed to her at the time of the
marriage. When the relationship of the accused with PW5 and
PW12 came to the knowledge of PW1, the relationship became
strained and they started residing separately. Mediation talks took
place between the parties and finally at the instance of mediators
they entered into Ext.P5 agreement as per which they agreed to
put an end to the matrimonial relationship and to separate. After
about six months, the accused again approached PW1 and then
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she was made to believe that he had divorced his earlier two
wives. Again they started residing together for about six to seven
months. PW1 had 25 cents of property in her name. The accused
started insisting that the property be transferred in his name. This
was not amenable to PW1 and this resulted in a rift between the
parties and then again they started residing separately. The
accused took away her two gold chains weighing 2 sovereigns, a
bangle weighing ¾ sovereign and a gold ring in addition to
household articles like mixie, stove, cooker, iron box etc. PW1
further deposed that the accused at the time of her examination
was residing with one Narayani @ Premalatha at Kasaragod.
According to PW1, she agreed to marry him because the accused
convinced her that he was a bachelor. Had she been aware of his
relationship with PW5 and PW12, she would never have married
him.
12.1. PW5 Sarojadevi deposed that as per Ext.P8
agreement dated 12/10/1987 she had married the accused and that
in the relationship she has three daughters. Pursuant to Ext.P8
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agreement, they were residing together for about six years in the
house of the accused and thereafter in a rented building. The
accused was a mechanic who was maintaining her as well as her
children. Thereafter she heard that the accused had developed
relationship with PW12 and that two children were born in the
said union. Much thereafter, she heard that the accused married
PW1 from Payyannur.
12.2. PW12 Sathyabhama deposed that as per Ext.P7
agreement dated 07/03/1994, she married the accused herein.
According to PW12, she was aware of the earlier marriage of the
accused with PW5. She has two children in the said wedlock.
She thereafter came to know that the accused had married PW1.
13. The accused when questioned under Section 313
Cr.P.C. admitted his marriage with PW1. According to him, it
was a marriage that was solemnized as per the rites and customs
of the community to which PW1 belonged. According to the
accused, there was no suppression of any material facts before the
marriage. When he got acquainted with PW1 itself he had told
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her about his earlier relationship with PW5 and PW12. It was as
insisted by PW1 that he agreed to marry her. There was no
solemnization of marriage with PW5 and PW12. On the other
hand, they were living together on the basis of Exts.P7 and P8
agreements. According to the accused it was only a contractual
relationship that he had with PW5 and PW12. On the other hand,
PW1 is his legally wedded wife. He also submitted that after the
marriage he came to know about the illicit relationship of PW1,
which he questioned. This resulted in a rift between the parties
pursuant to which they executed Ext.P5 (D3) agreement as per
which they decided to separate. Thereafter there was no
relationship between the parties. In 2005, PW1 approached him
and demanded an amount of ₹2,00,000/- for construction of a
building. The accused was not in a position to help her and it was
thereafter the lawyer notice was issued and Ext.P6 complaint
filed.
14. Now the question is whether the trial court was
right in finding the accused guilty of the offences punishable
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under Sections 415 and 406 IPC on the basis of the aforesaid
materials on record. In Ext.P6 complaint, the case of the
complainant is that she came to know about the earlier
relationships of the accused in August 2003. However, PW1 in
her cross examination deposed that PW5 had come to Payyannur
and met her in the year 2000 and that it was then she came to
know about the relationship of the accused with PW5. Therefore
her allegation in the complaint that she came to know about the
relationship only in August 2003 is apparently incorrect. Even if
that be so, PW1 came to know about the earlier relationships of
the accused only after the solemnization of her marriage with the
accused, which was on 29/07/1998. PW5 in the cross
examination deposed that PW1 never knew about the earlier
relationships of the accused and that it was only when she met
and informed PW1 about the same, the latter came to know about
the same. Therefore, the case of PW1 that she was unaware of the
relationship of the accused with PW5 or PW12 is corroborated by
the testimony of PW5. In addition, Ext.P5 deed by which the
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parties agreed to separate is admitted by the accused. The
question whether the parties could divorce as per Ext.P5 divorce
deed is a different matter. However, the execution of the said
deed is admitted by the accused. In the said document also it is
stated that at the time of marriage PW1 was unaware of the fact
that the accused was married and that she believed him to be a
bachelor. Therefore, the prosecution case that PW1 was unaware
of the earlier relationships of the accused with PW5 and PW12
stands substantiated by the materials on record.
15. Section 415 IPC says that whoever by deceiving
any person fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to consent that
any person shall retain any property, or intentionally induces the
person so deceived to do or omit to do anything which he would
not do or omit if he were not so deceived, and in which act or
omission causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to "cheat".
The explanation says a dishonest concealment of facts is a
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deception within the meaning of this Section. The materials on
record show that there was a dishonest concealment of facts by
the accused of his earlier relationships which amounts to
deception within the meaning of Section 415 IPC. Therefore the
trial court was right in convicting the accused for the offence
punishable under Section 417 IPC.
16. The trial court has also found the accused
guilty of the offence punishable under Section 406 IPC. As
noticed earlier, Ext.P5 (D3) agreement is admitted by the
accused. While they were living together as husband and wife it
appears that for enabling the accused to conduct business and for
other needs, PW1 had pledged her gold ornaments and had also
availed loans. However, he never returned the same. As per the
said agreement, the accused agreed to return the said amounts
also. From the evidence it is clear that PW1 had incurred the
liability and gave the amounts to the accused believing him to be
her legally wedded husband. It was the said belief that appears to
have been exploited by the accused herein. Therefore, the trial
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court was right in finding the accused guilty of the offence
punishable under Section 406 IPC also. I do not find any
infirmity in the findings of the trial court calling for an
interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
