Madras High Court
P.Gandhimathi @ Akila vs M.Subramaniam on 18 June, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.310 of 2006 and M.P.No.1 of 2006 P.Gandhimathi @ Akila .... Petitioner vs. 1.M.Subramaniam 2.Nagammal 3.Murugavel 4.Nisha 5.Y.Kavitha 6.The Inspector of Police, All Women Police Station, Erode. ... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 7.12.2005, passed by the Judicial Magiastrate, No.1, Erode, in C.C.No.7 of 2004. For Petitioner : Mr.N.Manokaran For Respondent : Mr.S.Ashok Kumar,Sr.counsel for C.D.Johnson for R1 to R4 Mr.I.C.Vasudevan for R5 Mr.Hasan Md.Jinnah,A.P.P. O R D E R
Animadverting upon the order dated 7.12.2005, passed by the Judicial Magiastrate, No.1, Erode, in C.C.No.7 of 2004, this criminal revision case is focussed.
2. 'A' resume of facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus:
(a) The police, in terms of Section 173 Cr.P.C. filed the police report as against six accused, namely, 1. S.Krishnamurthy, 2.M.Subramaniam, 3.Nagammal, 4.Murugavel, 5.Nisha, 6.Y.Kavitha. The accused pleaded not guilty. Whereupon, the trial was conducted before the Magistrate.
(b) During enquiry, on the prosecution side, the complainant/the revision petitioner was examined as P.W.1 along with 18 others and Exs.P1 to P5 were marked. No oral or documentary evidence was adduced on the side of accused.
(c) Ultimately, the trial Court convicted A1 for the offences under Section 498-A IPC and Section 4(1) of the Dowry Prohibition Act and acquitted A1 of the offence under Section 323 IPC. The Magistrate also acquitted A2 to A6 of all the offences with which they were charged. It appears, A1 preferred criminal appeal questioning and challenging the conviction and sentence imposed as against him, which is pending. Whereas, the de-facto complainant P.W.1-Gandhimathi preferred this revision challenging and impugning the acquittal of A2 to A6 of all the offences with which they were charged on various grounds, the pith and marrow, the gist and kernal of them would run thus:
The judgement of the lower Court is not in accordance with law, as the Magistrate has chosen to simply remark as though no satisfactory evidence was adduced by the prosecution as against A2 to A6-the respondents herein and acquitted them. Despite clinching evidence available as against A2 to A6 also, no conviction was recorded and no sentence was imposed by the Magistrate. The lower Court also has not considered the purport of Section 8(b) of the Dowry Prohibition Act, which cast the burden on the accused and not on the prosecution. Even though there is nothing to indicate and exemplify that the case of the prosecution was false as against A2 to A6, nonetheless, the Magistrate developed some doubt about the prosecution case and acquitted A2 to A6. Simply based on the proposition that benefit of doubt has to be given to the accused, leniency cannot be shown towards the accused, and thereby deprive the revision petitioner of her genuine right to secure conviction as against A2 to A6. Even in response to the questions put to A2 to A6 during Sec.313 examination, no effective answers were given by them to evince their innocence. Minor lapses on the part of the investigating agency or prosecution cannot be taken as material by the learned Magistrate. Accordingly, the revision petitioner prayed for setting aside the order of the lower Court in acquitting A2 to A6 and pass suitable direction in this regard.
3. Heard both sides.
4. The point for consideration is as to whether the finding of the lower Court to the effect that prosecution has not adduced clinching evidence to prove the guilt of A2 to A6 in respect of the offence with which they were charged, is perverse or due to wrong appreciation or non appreciation of evidence placed before the Court.
5. The learned counsel for the revision petitioner would set forth and put forth his arguments to the effect that P.W.1 being the victim of the crimes perpetrated by A1 to A6, detailed and challenged, narrated and described the occurrence; nonetheless the Magistrate simply observed as though there was no evidence as against A2 to A6; P.Ws.2 and 3 even though happened to be the parents, they were not eyewitnesses to all the atrocities and cruelties perpetrated by the accused as against P.W.1 and in such a case merely because those witnesses P.W.2 and P.W.3 did not speak about the overt act of A2 to A6 specifically, the lower Court was not justified in drawing adverse inference as against the prosecution; in commensurate with Section 353 and 354 Cr.P.C., the Magistrate had not rendered the judgement in acquitting A2 to A6 and accordingly he prayed for reversal of such acquittal.
6. Whereas, the learned Senior counsel for the respondents 1 to 5/A2 to A6 would, by way of pulverising and torpedoing the arguements as set forth and put forth by the learned counsel for the revision petitioner, would advance and develop his arguments to the effect that this Court, while exercising its revisional power cannot simply for the purpose of the petitioner having prayed for setting aside the order of acquittal, re-appreciate the evidence and arrive at a different conclusion, unless there is perversity or non-application of mind on the part of the Magistrate; the Magistrate, in fact, in paragraphs 17 and 18 of the judgements elaborately analysed the evidence and arrived at the conclusion that the prosecution has not proved the case as against A2 to A6; the Magistrate relying upon the evidence of the Police officers, clearly culled out that among the spate of complaints lodged by P.W.1 as against A1-her husband, she has not chosen to implicate the other accused herein and such an approach on the part of the Magistrate cannot be found fault with and accordingly no interference with the order of acquittal is warranted.
7. At this juncture, my mind is reminiscent and redolent of the following decision of the following Apex Court:
(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
8. The aforesaid judgement would clearly highlight and display that if two views are possible, the view one in favour of the accused should be allowed to subsist and no interference by the higher forum is warranted. Here, it has to be seen as to whether the Magistrate simply ignored the alleged clinching evidence adduced on the prosecution side as against A2 to A6 and acquitted them. In paragraphs 17 and 18 of the judgement of the lower Court, the Magistrate considered the deposition of P.W.17-the Police officer concerned and ascertained that in the various complaints lodged by P.W.1, there was no accusation as against A2 to A6 to the effect that they demanded dowry. It would not be out of place to mention that the police laid the police report without invoking the Sections 34 or 149 or 120(b) or 109 IPC and these are all enabling provisions to rope in the abettors and conspirators. The Magistrate also framed charges as against the accused, without invoking those aiding provisions. Hence, it is axiomatic and obvious that prosecution was duty bound to prove as against A2 to A6 independently the substantive offences under Section 498-A IPC and Section 4(1) of the Dowry Prohibition Act. In other words, there should be clinching evidence to prove that each of the accused A2 to A6 independently inflicted specific cruelty as against P.W.1 and each of A2 to A6 demanded dowry. Even though P.W.1, as pointed out by the learned counsel for the revision petitioner, in several places in her deposition deposed that along with A1, the other accused A2 to A6 came to the matrimonial home, where A1 and P.W.1 lived and demanded dowry, nonetheless, precisely, with reference to dates, there is no version to that effect and even in previous complaints, there is no such reference also as correctly pointed out by the lower Court.
9. In this factual matrix, What I could understand is that after marriage, which took place on 22.4.1999, for four months, the couple lived along with A2 to A6 in the house at Door No.25/26, Radhakrishnan Street, Periyavalasu, Erode and thereafter, A1 and P.W.1 started living separately. It is also in evidence that A4, A5 and A6 lived in a separate house, no doubt within a vicinity of 2 Kms. all lived.
10. To the risk of repetition, without being tautalogous, I would like to point out that the case of the prosecution is not that there was a conspiracy among A1 to A6 and in pursuance of that conspiracy A1 or some of the accused indulged in perpetrating cruelty as contemplated under Section 498-A and also indulged in demanding dowry as contemplated under Section 4(1) of the Dowry Prohibition Act. There is also no evidence to show that there is any conspiratorial approach on the part of A1 to A6 in perpetrating crime on P.W.1. No doubt, the evidence of P.W.1, as pointed out by the learned counsel for the revision petitioner, cannot be brushed aside as though it is fraught with falsity and inconsistency. She would narrate that within a period of 15 days, her husband's sister died, whereupon, her husband and family members cast a black look at P.W.1 and even started describing or labelling her as an unfortunate bride entered their house. The question arises as to whether such sort of social attitude on the part of A2 to A6 could be taken as one attracting Section 498-A IPC. I am of the considered opinion that the bickerings and dickerings of social life cannot be allowed to be magnified as an offence, under Section 498-A IPC. It is doubtful if such ordinary blame worthy behaviours and bickerings and dickerings are allowed to be governed by Section 498-A, the entire society will be at risk. No doubt, we could see that P.W.1 was not taken into the fold of the husband's family, for which P.W.1 attributes dowry as the motive. But that is a big pill to swallow and only with a pinch of salt her version could be taken, and that too, in the wake of her silence as against A2 to A6 in various complaints filed by her, as correctly highlighted by the lower Court in its judgement in paragraphs 17 and 18.
11. The learned counsel for the revision petitioner would point out that independent witnesses, other than relatives cannot be expected in cases of this nature. No doubt, only relatives and the near and dear would be able to speak about the rift in the matrimonial life of the couple and not strangers, but there should be clear and believable evidence to that effect. Here even P.W.2 and P.W.3-the parents, as observed by the lower Court have not spoken anything about the actual perpetration of cruelty by A2 to A6as against P.W.1 and also about their alleged act of demanding dowry from P.W.1. That fact has been narrated by the lower Court and commented upon, adversely as against the prosecution case, warranting no interference by this Court.
12. The lower Court also correctly in paragraph No.18 of its judgement observed that even though in the earlier FIR registered under Section 323 IPC the charge-sheet was laid as against A1 and A2 and they were acquitted of the charge, P.W.1, ignoring such acquittal, had chosen to include the said offence under Section 323 IPC also while lodging the present FIR in All Women Police Station. I am of the opinion that this Court, if intends to remit the matter back to the lower Court, there should be evidence available, which should ex facie and prima facie capable of fastening A2 to A6 liability with criminal liability. As has been correctly pointed out by the learned Senior counsel for A2 to A6, once the lower Court developed doubt about the prosecution evidence as against A2 to A6 and given the benefit of doubt on the ground that the guilt was not driven home as against A2 to A6, this Court may not interfere with it. I would like to agree with the learned Senior counsel for A2 to A6 that in view of the reasoned decision taken by the lower Court in acquitting A2 to A6, this Court, while exercising the revisional power need not interfere with it and accordingly, I could see no merit in the revision and the same is dismissed.
13. It is also in evidence, as per P.W.1, that at the time of marriage 20 sovereigns of gold jewels and Rs.15,000/- worth articles were given as 'sridhana', on the request emanated from the bridegroom's side, and there is nothing to indicate and demonstrate that A2 to A6, at that time itself were avaricious enough in demanding dowry over and above what they demanded as 20 sovereigns of jewels and Rs.15,000/- worth articles. The lower Court also felt that the case of P.W.1 that A2 to A6 demanded 10 sovereigns of gold jewels and Rs.2,00,000/- additionally as dowry, was not proved in view of lack of evidence and as such, I could see no infirmity in the analysis of evidence made by the lower Court.
14. The learned counsel for the revision petitioner would make a request that the discussions made in dismissing this revision may not have any bearing on the appeal pending before the appellate Court.
15. It is quite obvious and axiomatic that the appellate Judge, before whom the Criminal appeal filed by A1 is pending, is expected to dispose of the matter untrammelled and uninfluenced by any of the observations made by this Court in dismissing this criminal revision case.
Msk To The Judicial Magiastrate, No.1, Erode