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2020 DIGILAW 821 (KER)

Haridas v. State of Kerala

2020-10-01

N.ANIL KUMAR

body2020
ORDER : N. Anil Kumar, J. 1. The revision petitioner was the 1st accused in CC No. 1528 of 2003 on the file of the Judicial First Class Magistrate Court, Kunnamkulam and the appellant in Crl. Appeal No. 772 of 2006 on the file of the Third Additional Sessions Judge (Adhoc) Fast Track Court-I, Thrissur. By its judgment dated 15.11.2006, the learned magistrate convicted and sentenced the revision petitioner/1st accused to undergo simple imprisonment for six months and also to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for one month more. 2. Challenging the conviction and sentence, the revision petitioner/1st accused preferred Crl. Appeal No. 772 of 2006 before the Sessions Court, Thrissur. The learned Third Additional Sessions Judge, to whom the case was made over for hearing, dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the revision petitioner/1st accused is before this Court. 3. The prosecution case, in brief, is as hereunder; The 1st accused is the husband of PW1. The marriage between the 1st accused and PW1 was solemnized on 07.05.2001 in accordance with the custom prevailing in their community. Thereafter, the couple resided together at the residence of the accused. It is alleged that while so, the accused treated PW1 with cruelty by demanding more dowry and harassed both physically and mentally. Thus, the accused are alleged to have committed the offences punishable under Sections 323 and 498(A) r/w Section 34 of the Indian Penal Code (hereinafter referred to as, "IPC"). Accused 2 and 3 are the parents of the 1st accused. 4. Upon the appearance of the accused before the trial court, after having heard both sides, the charge under Sections 323 and 498(A) r/w Section 34 was read over, to which they pleaded not guilty. 5. During the trial, PWs 1 to 8 were examined and marked Exts.P1 to P8 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1) (b) of the Code of Criminal Procedure. They denied all the incriminating circumstances appearing in the evidence against them. DW1 was examined and marked Exts.D1 to D4 on the defence side. 6. On appreciation of the evidence, the learned magistrate convicted and sentenced the 1st accused to undergo simple imprisonment for six months and also to pay a fine of Rs. They denied all the incriminating circumstances appearing in the evidence against them. DW1 was examined and marked Exts.D1 to D4 on the defence side. 6. On appreciation of the evidence, the learned magistrate convicted and sentenced the 1st accused to undergo simple imprisonment for six months and also to pay a fine of Rs. 1,000/- as fine and in default of payment of fine to undergo simple imprisonment for one month more for the offence under Section 498(A) of the IPC. The 1st accused was not found guilty of the offence punishable under Section 323 of the IPC. Accused 2 and 3 were found not guilty of the offences punishable under Sections 323 and 498(A) r/w Section 34 of the IPC and accordingly, they were acquitted. 7. Heard Sri. P. Ramachandran, the learned counsel for the revision petitioner; Sri. G. Sreekumar Chelur, the learned counsel for the additional 2nd respondent; and Sri. M.S. Breez, the learned Senior Public Prosecutor for the State. 8. During the pendency of this revision, the learned counsel for the revision petitioner filed Crl.M.P. No. 791 of 2017 to implead the defacto complainant/PW1 as additional 2nd respondent in this Crl.R.P. This Court, on 21.02.2017, allowed Crl.M.P. No. 791 of 2017 and issued notice to the additional 2nd respondent. The additional 2nd respondent entered appearance in this case. 9. The additional 2nd respondent, who was the defacto complainant/PW1 before the trial court, had filed petitions before the Family Court, Thrissur as OP Nos. 304 and 494 of 2007 against the accused and his parents for maintenance, return of gold ornaments and other reliefs. The aforesaid OPs were referred to the Lok Adalat, Thrissur and the matter was settled between the parties by Annexure-I award. Annexure-I, copy of the award, attached to Crl.M.P. No. 791 of 2017 would inter alia show that both parties decided to file a joint petition under Section 13(B) of the Hindu Marriage Act on fulfillment of conditions as stated hereunder; "1) That the Respondent/husband agreed to pay Rs. 1,75,000/- (Rupees one lakh seventy five thousand only) to the petitioner/wife towards all the claims including value of ornaments advanced in OP 494/07 and maintenance of herself and the minor child Adwaith within three months from today. 2) Petitioner/wife agreed to withdraw all the pending cases. 1,75,000/- (Rupees one lakh seventy five thousand only) to the petitioner/wife towards all the claims including value of ornaments advanced in OP 494/07 and maintenance of herself and the minor child Adwaith within three months from today. 2) Petitioner/wife agreed to withdraw all the pending cases. She has further agreed to co-operate with the respondent to settle criminal revision petition/appeal pending before the Honourable High Court. 3) As agreed between the parties, permanent custody of the minor child is given to the mother. Father is permitted visiting right once in a month on 3rd Saturday in the presence of Shirestadar/Counsellor of the Court between 10 am and 12 noon. Parties are at liberty to approach the court for alternative in the changed circumstances. 4) Spouses agreed that they have no mutual claim in future. In case of default, the property comprised in RS 1125/part of Anjoor Village shall be charged for the debt under this award together with interest @ 6%." 10. As per Section 21 of the Legal Services Authorities Act, 1987, every award of the Lok Adalath shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to under sub-section (1) of Section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870. Sub-section (2) of Section 21 further provides that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. 11. Going by Section 21 of the Kerala Legal Services Authorities Act, every award of Lok Adalat shall be deemed to be a decree of the civil court. Needless to say that the aggrieved party is entitled to execute the decree as if it is a decree of a civil court. Going by the award, it is seen that the revision petitioner agreed to pay Rs. 1,75,000/- to the additional 2nd respondent towards all her claims including value of gold ornaments advanced in OP No. 494 of 2007 and maintenance of herself and the minor child within three months from the date of the award, i.e., 17.03.2010. 12. Going by the award, it is seen that the revision petitioner agreed to pay Rs. 1,75,000/- to the additional 2nd respondent towards all her claims including value of gold ornaments advanced in OP No. 494 of 2007 and maintenance of herself and the minor child within three months from the date of the award, i.e., 17.03.2010. 12. The learned counsel for the revision petitioner submits that the revision petitioner deposited an amount of Rs. 2,52,204 on 27.09.2017 before the District Treasury, Thrissur by virtue of Clause 4 in the award. 13. The learned counsel for the additional 2nd respondent submits that the award has not so far been acted upon by the parties and the award is non est in law. According to him, the parties are at liberty to approach the court for alternative remedies in the event of changed circumstances. 14. Going by the terms of the award, it is very clear that the remedy of the parties to approach the court for alternative remedies is as per clauses 3 and 4 of the award. Nothing more and nothing less. 15. By way of legal fiction, the award is binding on the additional 2nd respondent. In case the award has been obtained by fraudulent means, it is within the realm of the additional 2nd respondent to get it set aside in accordance with law. Unless and until the award is not set aside in a process known to law, the additional 2nd respondent is legally precluded from raising technical contentions to defeat the terms of the award. As per Clause 2 of the award, the additional 2nd respondent had agreed to withdraw all pending proceedings including this Crl.R.P. pending before this Court. However, the additional 2nd respondent is not willing to file an application stating that the matter has been settled between the parties before this Court, presumably, for the reason that she is not satisfied with the terms of the award passed by the Lok Adalat. True, nobody can be compelled to file an application for compromise before this Court pertaining to a non-compoundable offence under Section 498(A) of the IPC. Hence, it is necessary to examine the merit of the case irrespective of the compromise between the parties by virtue of law. True, nobody can be compelled to file an application for compromise before this Court pertaining to a non-compoundable offence under Section 498(A) of the IPC. Hence, it is necessary to examine the merit of the case irrespective of the compromise between the parties by virtue of law. In case, the additional 2nd respondent is not satisfied with the award or if she has a case that the award has been obtained behind her back practicing fraud on her, it is for her to set the law in motion and get the award set aside in accordance with law. The said remedy is left open. 16. For the occurrence in question, PW1, the wife of the revision petitioner/1st accused, lodged Ext.P1 complaint before the police, on the basis of which, PW6 registered Ext.P7 FIR. PWs 2 and 3 are the mother and brother of PW1. Admittedly, the marriage between PW1 and the revision petitioner/1st accused took place on 07.05.2001. After the marriage, PW1 had been residing at the residence of the 1st accused treating it as her matrimonial home. PW1 stated that 40 sovereigns of gold and Rs. 40,000/- was given to the revision petitioner at the time of marriage. PW1 resided along with the revision petitioner for a period of seven months only. It is alleged that during the subsistence of a valid marriage, PW1 became pregnant and accordingly, she was taken to her house for delivery. It is further alleged that during the period of seven months, the 1st accused had ill-treated PW1 with cruelty. PW1 also adduced evidence to show that after the delivery, the accused did not turn up to look after her affairs. According to her, he also demanded more dowry from her. She would state that she filed a complaint before the Women Cell after ten months after her delivery. According to her, the complaint was referred to the Kunnamkulam Police Station and the dispute was settled on 16.01.2002. Subsequent to the settlement, PW1 was taken to the house of the appellant on 20.01.2003. It is her case that she was not treated well on her arrival and the accused continued ill-treating and manhandling her, stating that the dowry given to her at the time of marriage was insufficient. PWs 2 and 3 supported the version of PW1 in full. 17. It is her case that she was not treated well on her arrival and the accused continued ill-treating and manhandling her, stating that the dowry given to her at the time of marriage was insufficient. PWs 2 and 3 supported the version of PW1 in full. 17. The learned counsel for the revision petitioner contended that Ext.D4 reply notice was issued by PW1 before initiating prosecution in this case. Ext.D4 would show that on 02.12.2001, PW1 was taken to her house by her parents in connection with her delivery and she delivered a baby boy on 17.02.2002. In Ext.D4 reply notice, it is stated that after the delivery, the accused came to her matrimonial house, whereas, when PW1 was examined, she stated that the accused did not turn up after the delivery. Going by the contents of Ext.D4, there is no specific allegation that the accused subjected PW1 to cruelty as defined under Section 498(A) of the IPC. There is no allegation in Ext.D4 that the conduct of the accused was of such a nature as was likely to drive PW1 to commit suicide or to cause grave injury or danger to life, limb or health. This is evident from the fact that although an allegation was raised in the complaint that the accused assaulted PW1, the trial court acquitted the 1st accused of the offence punishable under Section 323 of the IPC. 18. The second contention raised is that the accused harassed PW1 with a view to coerce her to meet unlawful demand for dowry. Apart from the allegation, there is no proof to show that such a demand was made by the accused during the subsistence of a valid marriage. It is not evident from Ext.D4 reply notice as well. In Ext.D4 reply notice, it is stated that the accused misappropriated 40 sovereigns of gold ornaments and Rs. 40,000/-, which was given to PW1 at the time of her marriage. Mere allegation is not a proof, especially, in view of the settlement arrived at between the parties later. Going by the facts of the case, it is very clear that the settlement arrived at between the parties before the Lok Adalat is not acceptable to PW1. On merits, the evidence let in is not sufficient to attract an offence under Section 498(A) of the IPC. Going by the facts of the case, it is very clear that the settlement arrived at between the parties before the Lok Adalat is not acceptable to PW1. On merits, the evidence let in is not sufficient to attract an offence under Section 498(A) of the IPC. Mere trivial irritations, quarrels and normal wear and tear of the married life, which happen in family life, are not sufficient to infer that an offence under Section 498(A) of the IPC is made out from the evidence on record. On analyzing the entire evidence, this Court is of the view that on merits, the prosecution has not succeeded in proving the offence under Section 498(A) of the IPC beyond doubt. It is brought out that subsequently, the matter has been condoned and settled between the parties. Taking into consideration of the settlement, this Court is of the view that the conviction and sentence imposed by the trial court as confirmed in appeal are liable to be interfered with. In the result, the revision petition is allowed. The conviction and sentence imposed by the trial court as confirmed by the appellate court for the offence punishable under Section 498(A) of the IPC are hereby set aside and the revision petitioner/1st accused is acquitted of the offence thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited during the pendency of this revision petition pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioner/1st accused in accordance with law. Pending applications, if any, stand disposed of. At this juncture, the learned counsel for the additional 2nd respondent submitted that the observations and findings in this order shall not take away the rights of the additional 2nd respondent in the pending proceedings between the parties. In view of the submission, it is clarified that this revision is allowed without prejudice to the rights of the parties to take appropriate contentions in the pending proceedings in accordance with law.