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Mottammal Abdul Kareem vs State Of Kerala on 1 November, 2018

23642364IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY ,THE 01ST DAY OF NOVEMBER 2018 / 10TH KARTHIKA,
1940

Crl.Rev.Pet.No. 1244 of 2006

AGAINST THE JUDGMENT IN CRA 312/2001 of II ADDL. SESSIONS
COURT, KOZHIKODE

AGAINST THE JUDGMENT IN CC 111/1999 of J.M.F.C.,VADAKARA

REVISION PETITIONER/APPELLANT/1ST ACCUSED:

MOTTAMMAL ABDUL KAREEM
S/O.MOOSA, MOTTAMMAL HOUSE, VADAKARA, KOZHIKODE.

BY ADV. SRI.MOHANAN V.T.K.

RESPONDENT/RESPONDENT/COMPLAINANT :

STATE OF KERALA
BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.

SRI.C.M.KAMMAPPU (SR.PUBLIC PROSECUTOR)

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
01.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 1244 of 2006

2

ORDER

The revision petitioner herein challenges the

conviction and sentence against him under Section

406 I.P.C in C.C No.111/1999 of the Judicial First

Class Magistrate Court, Vadakara. He is the 1st

accused in the case. He and five others faced

prosecution in the court below on the allegation

that the revision petitioner’s wife Ayisha had been

mentally and physically ill-treated by them, and

that some ornaments of the wife were also

appropriated by the husband. The Police registered

the crime on the complaint made by the revision

petitioner’s wife before the Judicial First Class

Magistrate Court, Vadakara. The said complaint was

forwarded for investigation to the Police under

Section 156 (3) Cr.P.C. After investigation, the

Police submitted final report under Sections 498A

and 406 I.P.C against the husband of the

complainant and five others.

2. All the accused appeared before the
Crl.Rev.Pet.No. 1244 of 2006

3

learned Magistrate and pleaded not guilty to the

charge framed against them. The prosecution

examined seven witnesses and proved Exts.P1 to P4

documents in the trial court. All the accused

denied the incriminating circumstances when

examined under Section 313 Cr.P.C. They examined a

witness on their side as DW1 and also proved

Ext.D1 document. On an appreciation of the

evidence, the trial court found the accused Nos.2

to 6 not guilty of any of the offences, and

accordingly they were acquitted. The 1st accused

was convicted under Sections 498A and 406 I.P.C by

the trial court. On conviction, he was sentenced

to undergo rigorous imprisonment for three years

under Section 498A I.P.C, and to undergo rigorous

imprisonment for six months under Section 406

I.P.C.

3. Aggrieved by the judgment of convictin

dated 22.5.2001, the 1st accused approached the

Court of Session, Kozhikode with Crl.A No.312/2001.

In appeal, the learned II Additional Sessions
Crl.Rev.Pet.No. 1244 of 2006

4

Judge, Kozhikode found the accused not guilty under

section 498A I.P.C and accordingly he was acquitted

of the said offence. However, the appellate court

confirmed the conviction and sentence under Section

406 I.P.C.

4. On hearing both sides, and on a perusal of

the materials, I find that there is no

satisfactory evidence in this case to sustain the

conviction under Section 406 I.P.C. On factual

aspects as regards misappropriation of gold

ornaments, there is practically the evidence of the

complainant alone. She was examined as PW1.

Though she has stated so many things in her

complaint, she did not state such things in detail

when examined as PW1. That is why the appellate

court acquitted the 1st accused of the charges under

Section 498A I.P.C. Even as regards

misappropriation of gold ornaments, the evidence of

the complainant is confined to two sentences. One

is that her husband had taken 30 sovereigns of gold

ornaments, and the other sentence is that when she
Crl.Rev.Pet.No. 1244 of 2006

5

demanded the ornaments, only ten sovereigns were

returned. These two sentences apart, there is

nothing definite or satisfactory in the evidence of

the complainant to prove the alleged

misappropriation of ornaments. She has not stated,

when the ornaments were taken or appropriated by

her husband and what all ornaments were

appropriated by her husband. To disprove the

complainant’s case, the accused examined DW1 and

also proved Ext.D1 document. This document shows

that most of the ornaments had been returned to the

complainant and she received those ornaments in the

presence of mediators. Of course, much evidentiary

value cannot be attached to Ext.D1 document.

Anyway, on an examination of the evidence given by

the lady, I find that she has not given the details

of the misappropriation alleged by her. Though she

stated so many things in the complaint marked as

Ext.P1, she did not re-produce or re-tell those

things when examined as PW1. It is not known when

the ornaments were taken or appropriated by the
Crl.Rev.Pet.No. 1244 of 2006

6

husband or what all ornaments were taken by him, or

what all ornaments were returned by him, or when

such ornaments were returned by him. The

complainant has not given the details on these

aspects. On her cryptic evidence confined to two

sentences as regards misappropriation of ornaments,

her husband cannot be found guilty.

5. The complainant brought complaint against

six persons including her husband. This conduct in

arraigning all the inmates of the matrimonial home

or all the in-laws, as accused in the complaint,

creates serious doubt about the truth of the

prosecution case. Even the husband of her sister-

in-law is seen arraigned as accused. His sister

has been residing far away with her family. The

brothers of her hsuand are also arraigned as

accused in the complaint. Though she arraigned so

many persons in the complaint, she did not give

much evidence against these persons. That is why

the trial court itself found them not guilty.

There is reason to believe that the complainant
Crl.Rev.Pet.No. 1244 of 2006

7

arraigned all the in-laws as accused in the

complaint with the object of harassing them. I

find that the prosecution has not adduced fool-

proof and satisfactory evidence proving the alleged

misappropriation of ornaments. In the absence of

such evidence, or when the case of the complainant

is doubtful, the accused is entitled for

acquittal.

In the result, this revision petition is

allowed. The revision petitioner is found not

guilty of the offence under Section 406 I.P.C and

he is acquitted of the said offence in revision.

Accordingly, the conviction and sentence against

him in C.C 111/1999 of the court below, confirmed

in appeal by the appellate court, will stand set

aside, and the revision petitioner will stand

released from prosecution.

SD/-

P.UBAID
ma /True copy/ JUDGE
P.S to Judge

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