RAMACHANDRAN Vs. BABURAJ

JUDGEMENT

(1.) This appeal is pre-ferred against the order of acquittal passed by the learned Judicial First Class Magis-trate, Kannur in C.C.639/97. The unfortu-nate incident that had led to this litigation is the matrimonial discord between the hus-band and wife on account of the complaint of the husband that the wife has adulter-ous connection with the accused in this case. Both the complainant and his wife are teachers who are expected to be the role model for shaping the future of children. But here the averments are that on 18.12.1996 at about 2.00 p.m. the accused has commit-ted adultery by having sexual intercourse with the complainant's lawfully wedded wife namely Narayani. The accused was aware that she was the wife of the complainant and the incident took place in the bed room of the complainant's house situated at Chcrukunnu. The defence is that of a total denial. It is a well settled principle that in cases relating to adultery the chance of hav-ing an eyewitness is very remote. That is why it is often said the story of seeing an adultery through a keyhole is only an imagi-nary one and it cannot be accepted. But adultery is a matter that could be proved through the surrounding circumstances emerging in a particular case.

(2.) In this case very strangely I find that the wife who is committed to have adultery with the accused is examined as a witness for the prosecution. This witness, to start with, had not supported the case of the pros-ecution regarding the allegation of adultery. She had denied the same. So the prosecu-tion had declared her as hostile and was permitted to cross-examine. In these mat-ters also I have to state a cross-examina-tion of a witness by the party who examine her is not normally done when there is noth-ing absolutely before court to show that she is deviating from her previous statement. But here is nothing of that sort still the court has permitted cross examination.

(3.) There arc two letters Exts.Pl and P2. Ext.PI is a letter written in red ink and some of the portions are torn and there is no indication in that letter that the accused has connection with the lady. Then the trump card is Ext.P2. Ext.P2 is produced to show that the wife had admitted her sexual connection with the amjscd. But PW3 her-self would depose before court that unless Ext.P2 letter is written and given to him, the husband has threatened that he will break the Thali and throw it away and therefore in order to sustain the marital relationship she was forced to write that letter. It has to be remembered that the statement is given by a witness who is sum-moned by the prosecution to support the case of the prosecution and that evidence is a matter which has to be considered in that perceptive and if it has gone against the person who had summoned then he has to blame his fate and not otherwise. Therefore at that time in cross examination also the evidence of PW3 does not support the case of the prosecution. It is in cross examina-tion she had given some versions which also does not support the case of the prosecu-tion and she would further state that PW2 had no work and he is helped by the com-plainant, and when it was resisted by the wife namely. PW3 he has deposed against hor. So those are all answers brought out by examining a witness by the prosecution itself.