BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
24. 02.2015 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)NO.440 of 2009 1.Nobil Arockiraj 2.Arulmary .. Revision Petitioners Vs. State rep. by Inspector of Police All Women Police Station Manamadurai Sivagangai District. .. Respondent/Complainant Prayer: Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C., against the conviction and judgment passed by the learned Sessions Court, Sivaganga dated 07.09.2009 in C.A.No.25 of 2009, modifying and confirming the conviction and judgment of the learned Additional District Munsif cum Judicial Magistrate Court, Manamadurai dated 06.05.2009 in C.C.No.39 of 2009. !For Petitioner :: Mr.M.Subash Babu ^For Respondent :: Mrs.S.Prabha Govt. Advocate (Crl. side) :ORDER
The revision petitioners are arrayed as Accused Nos.1 and 2 in C.C.No.39 of 2009 on the file of the Court of District Munsif cum Judicial Magistrate, Manamadurai. They along with five other accused were charged for the commission of offences under Section 498(A) IPC and Section 4 of Dowry Prohibition Act 1960. The trial Court, after full-fledged trial, has convicted all the accused and sentenced them to undergo rigorous imprisonment for one year each for the commission of the said offences, fine of Rs.2,500/- each with default sentence of one month simple imprisonment and one year rigorous imprisonment respectively, vide judgment dated 06.05.2009. All the accused aggrieved by the conviction and sentence recorded by the trial Court preferred an appeal in C.A.No.25 of 2009 on the file of the Principal Sessions Judge at Sivaganga. The lower Appellate Court vide impugned judgment dated 07.09.2009 had acquitted the accused Nos.3 to 7 in respect of the commission of offences under Section 498(A) and Section 4 of Dowry Prohibition Act. Insofar as the appellants/A1 and A2 are concerned, the lower Appellate Court has acquitted them for the commission of offences under Section 4 of Dowry Prohibition Act and however, confirmed the conviction and sentence passed by the trial Court for the commission of offence punishable under Section 498(A) IPC and aggrieved by the same, the present appeal is filed.
2. The facts of the case would disclose that the marriage between the first petitioner and the de-facto complainant/P.W.1 was solemnized on 07.06.1998 as per Christian rites and Customs at Manamadurai and at the time of marriage, the parents of P.W.1 had given her 15 sovereigns of gold, cash of Rs.15,000/- and household articles worth about 30,000/-. The first revision petitioner/A1, at the time of marriage, was working as a Wire-man in the Telephone Department/BSNL. It is the specific case of the de-facto complainant/P.W.1 that right from the date of marriage, she has been subjected to cruelty, ill-treatment and harassment at the hands of all the accused and persuasive demand was made to bring a sum of Rs.5 lakhs to get an immovable property worth about Rs.5 lakhs, two wheeler and additional amount and since the said illegal demand was not acceded to, she has been subjected to physical abuse and torture.
3. It is the further case of the de-facto complainant/P.W.1 that though she became pregnant, the ill-treatment and harassment did not stop and for delivery of the first child, she has gone to parental home and a male child was born on 08.09.1999 and though 1+ years have lapsed after the birth of the male child, neither her husband, namely, A1 nor her in-laws had chosen to visit her and take her along with the child to the matrimonial home. In this regard, she has also lodged a complaint before the Social Welfare Officer, Sivaganga and nothing had fortified and left with no other option, she has lodged a complaint alleging harassment and ill-treatment on account of demand of dowry and based on the complaint, All Women Police Station, Manamadurai, Sivagangai, has registered a case for offences under Sections 498A of IPC and Section 506(ii) IPC and Section 4 of Dowry Prohibition Act.
4. P.W.10 was the Inspector of Police, attached to All Women Police Station, Devakottai, and on receipt of the complaint from P.W.1/de-facto complainant marked as Ex.P2, she registered an FIR marked as Ex.P.3. Thereafter, handed over the investigation to the Inspector of Police.
5. P.W.11 was the Inspector of Police, All Women Police Station, Sivaganga, and on receipt of the FIR, has found that the earlier Investigating Officer has examined the statements of the witnesses and collected materials and therefore, she did not examine and after completion of investigation, has filed the charge sheet/final report on 18.10.2002 charging all the accused for the commission of offence under Section 498(A) IPC and Section 4 of Dowry Prohibition Act.
6. The Court of District Munsif cum Judicial Magistrate, Manamadurai, on receipt of the final report took it on file in C.C.No.39 of 2003 and issued summons to all the accused and on their appearance framed the charges as stated above and when questioned the accused, they pleaded not guilty to the charges framed against them.
7. The prosecution in order to sustain their case has examined P.Ws.1 to 11 marked Exs.P1 to P3. No witnesses were examined and no documents were marked on behalf of the accused.
8. The appellants/all the accused were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances made out against them, the evidence rendered by the prosecution and they denied it as false.
9. The trial Court, on perusal of oral and documentary evidences, has convicted and sentenced all the accused as stated above vide judgment dated 06.05.2009 and on appeal by them in C.A.No.25 of 2009, the lower Appellate Court had acquitted Accused Nos.3 to 7 and also acquitted A1 and A2 for the commission of offence under Section 4 of Dowry Prohibition Act and however, confirmed the conviction and sentence in respect of Section 498(A) IPC and hence, this revision.
10. Mr.M.Subash Babu, learned counsel for the revision petitioners/A1 and A2, would contend that the lower Appellate Court, has categorically recorded the finding that there was difference of opinion between P.W.1/de- facto complainant and A2 ?. mother-in-law and having found that there was no harassment on account of demand of dowry, had acquitted A3 to A7 for the commission of offence under Section 498(A) and Section 4 of Dowry Prohibition Act and also acquitted the petitioners/A1 and A2 for the commission of offence under Section 4 of Dowry Prohibition Act, but, erroneously, confirmed the conviction and sentence passed under Section 498(A) of IPC and once the lower appellate Court had acquitted the revision petitioners/A1 and A2 for the commission of offence under Section 4 of Dowry Prohibition Act, it ought to have acquitted them for the commission of offence under Section 498(A) IPC also and prays for interference.
11. It is also brought to the notice of this Court that the first petitioner filed a petition for divorce alleging infidelity on the part of P.W.1/de-facto complainant and it was also found accepted and a decree for divorce was granted and of course, it is subject to challenge before this Court.
12. The learned counsel for the petitioners has also drawn the attention of this Court to the testimonies of witnesses and would submit that except the interested testimonies of P.Ws.1 and 2, no other separate materials have been produced by the prosecution to sustain their case and would further add that there are material contradictions between the testimonies of witnesses and the said material and vital aspect has been completely overlooked by the Courts below and hence prays for setting aside the impugned order passed by the lower Appellate Court and prays for honourable acquittal.
13. Per contra, the learned Government Advocate (Crl. Side), in her usual vehemence, would contend that the trial Court as well as the lower appellate Court had concurrently recorded the findings to that effect that A1 and A2 had caused ill-treatment, physically abused and harassment to P.W.1/de-facto complainant on account of demand of dowry and since the findings are concurrent in nature, the scope of interference by this Court in exercise of power under Sections 397 and 401 of Cr.P.C. is limited and it cannot be said that the Courts below had given perverse findings and hence, prays for confirmation of conviction and sentence passed against the revision petitioners/A1 and A2.
14. This Court paid its attention to the rival submissions and also perused the material placed before it in the form of typed set of papers as well as the original documents.
15. A perusal of the impugned judgment passed by the lower appellate Court disclosed that it has recorded categorical finding that there was some difference of opinion between P.W.1/de-facto complainant and her mother-in- law, namely, A2. The only fact, which weighed the mind of the lower appellate Court, is that though the male child was born out of wedlock, all the accused, especially, the first revision petitioner/A1 ?. father of the said child did not go and see the child. But the fact remains that there was a re-union subsequently and thereafter only, the complaint came to be lodged based on which, a criminal prosecution has been lodged.
16. P.W.2 is the father of the de-facto complainant and his evidence would disclose that accused No.2 only made a demand and there was on going tussle between his daughter and A2. A perusal of the testimony of P.W.1/de- facto complainant would disclose that all the accused had verbally and physically abused and harassed her on account of unreasonable demand of dowry.
17. It is pertinent to point out at this juncture that the trial Court had acquitted A3 to A7, though according to P.W.1, they joined with A1 and A2, made her life miserable on account of demand of dowry. However, no appeal has been filed by the State challenging the order of acquittal and the de-facto complainant also did not file any revision challenging the said order of acquittal and therefore, it has become final.
18. P.W.9 is a Medical Practitioner at Thiruppuvanam. According to him, on 20.05.2001, P.W.1 was brought to his clinic by P.W.2 and he found a lacerated injury on the left side of the face and contused wound on his hands and P.W.1 also complained that she has developed body pain and it is stated by her that on account of a fight with her husband, she sustained injuries.
19. P.W.10 was cross-examined with regard to the contradiction elicited in the testimony of P.W.9 and she would state that at the time of recording his statement under Section 161(3) Cr.P.C., P.W.9 did not specify the part of the body in which, P.W.1 had sustained injuries and he also did not state the reasons for sustainment of injuries. P.W.10 would further depose that prior to lodging of complaint in Ex.P2, P.W.1 has lodged a complaint on the file of Thiruppuvanam police station and she did not conduct any investigation and enquiry with regard to the complaint on the same set of allegations, which came to be lodged before Thiruppuvanam Police Station and she also did not find out the action taken by the said police. P.W.10 would further admit that the Deputy Superintendent of Police, namely, Mr.Karunanithi, has conducted the enquiry and she did not go through the records to find out the nature of disposal given to the said enquiry.
20. The lower appellate Court seems to have been influenced by the fact that A1 did not go and see the child even after 1+ years from the date of birth and also taking into consideration the testimony of P.W.9, the Doctor, who treated P.W.1. As pointed above, there is a material discrepancy between the statement given by P.W.9 during the course of investigation and giving evidence before the Court and the said vital contradiction has also been elicited through P.W.10. P.W.1 along with her child joined the company of A1 and A2 and thereafter only difference of opinion arose and the first petitioner/A1 also alleged infidelity on the part of P.W.1 and filed a petition for divorce on the very same ground, which came to be ordered and appeal at the instance of P.W.1 is pending on the file of this Court.
21. The lower appellate Court on the same set of evidence had acquitted A3 to A7 for the commission of offence under Section 498(A) IPC and Section 4 of Dowry Prohibition Act and also acquitted these petitioners/A1 and A2 for the commission of offence under Section 4 of Dowry Prohibition Act and in the light of the same, this Court is of the view that the conviction of A1 and A2 under Section 498(A) IPC, is unsustainable.
22. Therefore, in the light of the reasons assigned above, this Court is of the view that the impugned judgment passed by the lower appellate Court in confirming the conviction and sentence passed by the trial Court for the commission of offence under Section 498(A) warrants interference.
23. In the result, the criminal revision petition is allowed and the conviction and sentence recorded by the trial Court vide judgment dated 06.05.2009 made in C.C.No.39 of 2003 in convicting and sentencing the revision petitioners/A1 and A2 under Section 498(A) of IPC as confirmed by the lower appellate Court vide impugned judgment dated 07.09.2009 are set aside and they are acquitted. The fine amount, if any, paid by the revision petitioners/accused is to be refunded to them. The bail bond shall stand terminated. 24.02.2015 Index :Yes/No Internet:Yes N.B: The Registry is directed to mark a copy of the judgment to P.W.1 also. RR To 1.The Sessions Court, Sivaganga 2.The Additional District Munsif cum Judicial Magistrate Court, Manamadurai 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. M.SATHYANARAYANAN,J.
RR Crl.R.C.(MD)NO.440 of 2009 24.02.2015