Madras High Court
Ramasubbu : Revision vs Kandasamy : 1St on 21 March, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.03.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.876 of 2008
Ramasubbu : Revision Petitioner/PW2
Vs.
1.Kandasamy : 1st Respondent/Appellant/
Accused
2.The State by
Inspector of Police,
Kovilpatti West Police Station,
Tuticorin District.
(Crime No.554 of 2003) : 2nd Respondent/Respondent/
Complainant
Prayer: Criminal Revision Petition has been filed under Section 397 and
401 of Criminal Procedure Code, against the order of acquittal passed by the
Principal Sessions Judge, Tuticorin in Crl.A.No.37 of 2006, dated 09.07.2008.
!For Revision Petitioner : Mr.C.Pandarasamy
^For 1st Respondent : Mr.P.Andiraj
For 2nd Respondent : Ms.M.Anandha Devi
Government
Advocate
Criminal Side
(Crl. Side)
v
JUDGEMENT RESERVED DT: 15.02.2018
JUDGEMENT DELIVERED DT: 21.03.2018
:JUDGMENT
This criminal revision is directed against the order of acquittal passed by the Principal Sessions Judge, Tuticorin in Crl.A.No.37 of 2006, dated 09.07.2008.
2.The case of the prosecution is that the accused and the deceased Vijayalakshmi are husband and wife and after marriage, they were living happily and thereafter, the accused had given torture to his wife and due to which, he committed suicide. The Inspector of Police attached to Kovilpatti Police Station filed a final report under Section 306 IPC and Section 4 of the Prevention of Woman Harassment Act against the accused examining the witnesses.
3.In the trial court, 10 witnesses were examined and 9 Exhibits and MO1 marked. On the side of the accused two documents were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the accused for the offence under Section 306 IPC and sentenced to undergo 3 years RI and to pay a fine of Rs.3,000/-, in default to undergo 6 months of RI. Aggrieved by the order of the trial court, the accused preferred appeal before the first appellate court, which acquitted the accused. Against the order of acquittal of the first appellate court, the present revision has been filed by the revision petitioner.
4.The learned counsel for the revision petitioner/PW2 argued that the evidence of the eye witnesses are clear, cogent and convincing and according to the evidence of PW1, the accused used to drink along with PW6 Ramasamy and abused the deceased with filthy language and harassed the deceased by beating her and the evidence of the prosecution are natural in this case an hence, their evidence is to be acceptable and the prosecution proved the case beyond reasonable doubt through oral and documentary evidence, but the first appellate court travelled beyond the scope of the evidence and acquitted the accused and prays that the criminal revision has to be allowed.
5.On the other hand, the learned counsel for the 1st respondent/A1 argued that there was no procedural illegality or manifest error of law and the first appellate court passing that order had not overlooked the evidence clinching the issue and the High court cannot re-appreciate the entire evidence and take a view to the contrary for setting aside the acquittal order and only after analysing the entire evidence and document, the first appellate court acquitted the 1st respondent and prays that the criminal revision may be dismissed.
6.Heard the learned counsel for the revision petitioner, learned counsel for the 1st respondent and the learned Government Advocate (Criminal side) and also perused the materials available on record.
7.PW1 is the daughter of the deceased and the accused. PW1 during her evidence stated that her father is a drunkard and he used filthy language and her father and his friends used liquor in their house and her father subjected her mother to cruelty and when it was resisted by her mother and her father beat her mother and the above occurrence was happened prior to one month of the occurrence and her father suspected her mother charily and frequently her father came in drunken mood and subjected her mother to cruelty and on 25.09.2003, she went to her grand-mother house to enjoy Vocation holidays and on 01.10.2003 at 7.30 am, her mother called her through phone and asked her to come to help her, since their house was painted and then, she and her grandmother went to the house and they saw that her mother was found dead by way of committing suicide and only due to the cruelty by her father, her mother was committed suicide.
8.The main contention of PW1 is that her evidence that her father subjected her mother to cruelty. Regarding the cruelty, the deceased has not given any complaint to the police. PW1 stated during her evidence that prior to 1-1/2 months, her mother was subjected to cruelty by the accused. But she has not specifically stated during her evidence that on the date of the occurrence, the accused subjected her mother to cruelty.
9.PW1 has stated that her mother called her to come to their house to help her since their house was painted. But she has not stated that on that day, the accused subjected her mother to cruelty.
10.The deceased is a teacher. But she has not chosen to give a complaint to the Police regarding the torture given by her husband. No proper explanation was given on the side of the prosecution, why being an educated lady, failed to give complaint against the cruelty by her husband.
11.PW1 admitted during her cross examination that:-
?vd;Dila mk;kh mg;ghtpw;F ,ilna jfuhW ele;j tpraj;ij ve;j fhty; epiyaj;jpYk; vd; jhahh; g[fhh; bfhLf;ftpy;iy.?
12.Hence, it creates doubt about the prosecution case.
13.PW2 is the father of the deceased. PW2 during his evidence stated that the accused frequently used liquor and subjected his daughter to cruelty and the above fact was stated by his daughter through phone and then, he went to the house of the accused and he settled the matter and on 01.10.2003 in the morning, his daughter called his wife and PW1 through phone asked them to come to her house to assist her to arrange the articles, since their house was painted and he, his wife and PW1 came to the house of the accused and he found that her daughter died due to suicide.
14.PW2 has not given any complaint regarding the cruelty attributed by the accused to the deceased. PW2 during his cross examination admitted that:-
?vd;Dila kfs; capUld; ,Ue;j fhyj;jpy; vjphp vd; kfis Jd;g[Wj;jpdhh; vd;gJ gw;wp ehndh vd; kfnsh fhty; epiyaj;jpy; g[fhh; bfhLf;ftpy;iy vd;gJ rhpjhd; vjphp vd;Dila kfs; jw;bfhiyf;F fhuzk; vd ehd; Kjy; mikr;rUf;F bfhLj;j g[fhiua[k; kDita[k; ehd; jhf;fy; bra;atpy;iy.?
15.PW3 is the person, who has done mason work in the house of the accused. PW3 stated that the accused asked him to break the door of his house, which was locked inside and he helped the accused to break the lock and then, they opened the door and they say that one lady committed suicide.
16.PW3 during her cross examination stated that:-
?vjphp vq;fis thq;fs; vd;W miHj;J brd;whh; vjphp gjwpf; bfhz;L jhd; te;jhh; vjphp me;j bgz;iz fhg;ghw;w ntz;Lk; vd;W Tg;gplte;jhh; Tg;gpl;lJk; fjit cilj;J bfhLj;njhk;.?
17.PW4 is the neighbourhood of the accused. PW4 stated that the deceased was taken to the hospital and she went along with the deceased and the Doctor declared that the deceased was dead. PW4 has not stated that the accused subjected the deceased to cruelty.
18.At this juncture, it is necessary to refer the cross examination of PW4. PW4 stated in his cross examination that:-
?vjphp mth; kidtpia fhg;ghw;w Xo te;jhh; vd;gJ rhpjhd; tp$ayl;Rkp ,wg;gjw;F 3 ehl;fSf;F Kd;g[ vd; tPl;ow;F te;jpUe;jhh; tp$ayl;Rkp jd; fztUld; gpur;rpid vd;W vd;dplk; vJt[k; brhy;ytpy;iy tp$ayl;Rkp ,we;Jnghdhh; vd;Wk; vjphp mGjhh;?
19.PW4 is the neighbourhood and hence, there is a possibility to know the occurrence. PW4 stated during her cross examination that the accused attempted to save his wife and further she admitted that the deceased never stated to her that the accused subjected her to cruelty.
20.PW6 is the teacher, who is alleged to be the friend of the accused. In this case, PW6 was cited as material witness. But he turned hostile and did not support the case of the prosecution. Hence, his evidence cannot be given much importance.
21.In this case, to prove that the accused has not subjected her wife to cruelty, he examined the Watchman of Shenbagavalli Nagar and an auto driver were examined as DW1 and Dw2. They have stated that the accused has not subjected her wife to cruelty and there was a cordial relationship between the accused and the deceased. But on the side of the prosecution, no document was filed to prove that DW1 is the Watchman of Shenbagavalli Nagar. DW1 during his cross examination admitted that there was a record to show his appointment. Hence, his evidence cannot be given much importance.
22.DW2 is the auto driver. DW2 stated that he took the deceased in his auto to the school. Hence, DW2 has no chance to know that whether there is any cordial relationship between the accused and the deceased.
23.The learned counsel for the 1st respondent/accused argued that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence. Under Section 306, when there is no proof of direct or indirect acts of incitement to the commission of suicide, the person cannot be convicted under Section 306, Indian Panel Code, 1860, by submitting the ruling reported in (2008)2 MLJ (Crl) 645(SC) (Sohan Raj Sharma vs. State of Haryana).
24.To constitute an offence under Section 306 IPC, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. But in this case also, there was no proof of direct or indirect acts of incitement to the commission of suicide. Hence, it is held that the prosecution has failed to prove the case beyond reasonable doubt.
25.In this case, the evidence of witnesses and documents are carefully perused. In (2002) 9 SCC 393 [Thankappan Nadar and others vs. Gopala Krishnan and another), the Hon'ble Apex court has held as follows:-
?6.In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under section 397 read with section 401 crpc is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court. In Akalu Ahir v. Ramdeo Ram 1973 2 SCC 583 this Court has (in SCC pp. 587-88, para 8) observed thus:
?This Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.?
The Court further observed: (SCC p. 588, para 10) ?10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.? (emphasis added)
7.In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly following the law as enunciated by this Court, which does not empower the Court exercising the revisional jurisdiction to reappreciate the evidence.
8.In Vimal Singh v. Khuman Singh 1998 7 SCC 223 this Court after considering various decisions, observed as under: (SCC pp. 226-27, para 9) ?9. Coming to the ambit of power of the High Court under section 401 of the code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. sub-section (3) of section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.?
26.On coming to the instant case on hand, there was no procedural illegality or manifest error of the order passed by the first appellate court. Hence, it is not necessary to interfere with the findings of the first appellate court.
27.Keeping in mind the law laid down by the Hon'ble Apex court referred supra and also the facts of this case, this court is of the considered view that the order of the first appellate court do not call for any interference by this court.
28.In the result, this criminal revision fails and the same is dismissed.
To,
1.The Principal District Judge, Tuticorin.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.