Madras High Court
Tmt.M.Patma : Revision vs State Through Inspector Of Police 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.104 of 2007
Tmt.M.Patma : Revision Petitioner/
De-facto
complainant
Vs.
1.State through Inspector of Police,
All Women Police Station,
Thiruneveli Town,
in Crime No.12 of 2003. : R1/Complainant
2.Veeramani : R2/Accused
Prayer: Criminal Revision Petition has been filed under Section 397 and
401 of Criminal Procedure Code, against the judgment made in C.C.No.217 of
2003 on the file of the Judicial Magistrate No.1, Thirunelveli, dated
24.01.2007.
!For Revision Petitioner : Mr.M.Tamil Mani
^For 1st Respondent : Ms.M.Anandha Devi
Criminal Side
(Crl. Side)
For 2nd Respondent : K.Prabhu
JUDGEMENT RESERVED DT: 26.02.2018
JUDGEMENT DELIVERED DT: 21.03.2018
:JUDGMENT
This criminal revision is directed against the judgment made in C.C.No.217 of 2003 on the file of the Judicial Magistrate No.1, Tirunelveli, dated 24.01.2007.
2.The case of the prosecution is that the accused and PW1 are husband and wife and after marriage, the accused harassed PW1 and subjected her to cruelty, on demand of dowry tortured her. The Inspector of Police attached to All Women Police Station, Tirunelveli Police Station filed a final report under Sections 498-A and 406 of IPC against the accused examining the witnesses.
3.In the trial court, 6 witnesses were examined and 5 Exhibits were marked. On the side of the accused, one witness was examined and 7 documents were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court acquitted the accused from the charges levelled against him. Against the order of acquittal, the present revision has been filed by the revision petitioner.
4.The learned counsel for the revision petitioner/De-facto complainant argued that the trial court has wrongly concluded that the prosecution has failed to prove the allegation that the accused has compelled PW1 to get money from her father and the trial court has disbelieved the evidence of PW2 simply for the reason that he is the brother of PW1 and the trial court has wrongly come to the conclusion that the evidence of PW1 to PW3 is not sufficient to prove the misconduct of the accused and also trial court has failed to see that there could not be independent witness for family matters and the trial court has failed to see that the fact of marriage between the accused and one Subbulakshmi is not relevant to decide this case and the trial court has wrongly concluded that no particulars about the jewels were furnished in Ex.P1 in spite of the detailed particulars of jewels have been furnished by PW1 in her complaint Ex.P1 and the evidence of the prosecution are natural in this case and hence, their evidence is to be acceptable and the prosecution proved the case beyond reasonable doubt through oral and documentary evidence, but the trial 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 2nd respondent/accused argued that there was no procedural illegality or manifest error of law in the judgment of the trial court and the trial court passing that order had not overlooked the evidence clinching the issue and the trial court only after analysing the entire evidence and document, acquitted the accused and prays that the criminal revision may be dismissed.
6.Heard the learned Government Advocate (Criminal side) appearing for the 1st respondent and also perused the materials available on record.
7.PW1 is the wife of the accused. PW1 gave Ex.P1 complaint. There is no dispute with regard to the marriage between PW1 and the accused. PW1 during her evidence stated that the accused decided to construct a house in Tirunelveli and for that, PW1 gave amount by way of pledging her jewels and borrowed amount by way of GPF, but the accused did not repay the housing loan, instead asked her to get the amount from her father and subjected her to cruelty and hence, she gave the complaint. .But the above fact was not stated in her complaint. To prove that he pledged her jewels and her sister Vijaya Lakshmi jewels in the Cooperative Bank, no document was filed. It was admitted by PW1 during her cross examination.
8.PW1 in her complaint stated that her father and brother gave money for the construction of the house. Further, PW1 in her complaint has not stated that the accused demanded her to get money for the construction of the house from her father and brother. PW1 during her evidence stated that during the year 1998, at night time, her husband came in a drunken mood and asked her to cook and when she refused, he tortured her and strangulated her neck and pushed her out and her husband attempted to misbehave towards her servant. Regarding the above, she has not given any complaint to the police.
9.PW1 during her evidence stated that only her husband subjected her to cruelty. But during her cross examination, she has stated that vjphp vd;dhy; bfhLikg;gLj;jg;gl;lhh; vd;W Twp tHf;fwpQh; bry;yghz;oad; K:ykhf vdf;F tHf;fwpQh; nehl;O]; mDg;gg;gl;lJ mjd; efy; vd;dplk; fhl;lg;gLtJjhd; mJ vf;rpgpl;.O. 1 MFk;.
10.PW1 during her evidence stated that for Ex.D1, she sent reply. But the copy was not filed. PW1 during her evidence stated that her husband demanded dowry and due to it, dispute arose between her and her husband and only due to it, the accused deserted her. But on perusal of Ex.D1, it is stated that due to the cruelty by PW1, the accused deserted her. Further, the accused filed HMOP No.66 of 2003 for divorce as against PW1 and divorce was granted. PW1 filed CMA as against the order of divorce. The CMA was dismissed. Hence, PW1 filed revisions before the High Court. The revisions were also dismissed by the High Court. The order passed by the High Court was produced and marked as Exs.P3 and P4.
11.On perusal of Exs.P3 and P4, it is stated that only PW1 subjected the accused to cruelty and the divorce was recorded. PW1 has not stated in her complaint and in her evidence that on which date, her husband demanded dowry. PW1 during her cross examination stated as follows:-
?tujl;rizahf nfl;gJ rl;lg;go jtW vd;W vdf;F bjhpa[k; mJ rk;ge;jkhf ehd; fhty; Jiw mjpfhhpfsplKk; mtUila nky; mjpfhhpfsplKk; g[fhh; bfhLj;jPh;fsh vd;W nfl;lhy; mtUld; nrh;e;J thH ntz;Lk; vd;w fhuzj;jhy; g[fhh; bfhLf;ftpy;iy.?
12.PW1 in her evidence stated that her husband took her 30 sovereigns of jewels from her bureau. But PW1 during her cross examination stated as follows:-
?vjph; vd;Dila eiffis vLj;J brd;wjhf brhy;tJ vdf;Fnehpilahf bjhpahJ vd; Kd;dpiyapy; vLj;Jr; bry;ytpy;iy.?
No steps have been taken by PW1 to recover the jewels from her husband. Hence, the evidence of PW1 stating that her husband took away 30 sovereigns of jewels from her bureau is not acceptable, since she and the accused lived separately.
13.Further, PW1 during his evidence stated that she has only given Rs.6 Lakhs to her husband for the construction of the house, when they were living together. Hence, the amount given by her husband does not come under the category of dowry demand. Therefore, PW1's evidence is not corroborated with the averments found in Ex.P1 complaint.
14.PW2 is the brother of PW1. PW2 stated during his evidence that at the time of marriage, they gave 25 sovereigns of jewels to PW1 and at the request of the accused family, Rs.10,000/- was given as cash and for Deepavali, they gave 3 sovereigns of gold chain to the accused and the accused demanded cot, bureau and scooter and they gave the above articles to the accused and scooter and Rs.10,000/- by purchasing jewels, but when it was refused to give by them, the accused subjected her sister to cruelty and the accused demanded his sister's salary and his sister gave Rs.6 lakhs for the construction of the house and the accused failed to repay the loan obtained for the construction of the house and for repaying the loan amount, the accused forced PW1 to get money from her father and he heard that the accused had illegal intimacy with the servant of PW1 and then, he took 30 sovereigns of jewels from the house of PW1.
15.PW1 has not stated in her complaint that the accused demanded 3 sovereigns in addition to 30 sovereigns, cot, bureau and scooter and Rs.10,000/- for the purchase of jewels. Further, in Ex.P1, it is not stated that the accused demanded the monthly salary of PW1. PW2 has not given any complaint in respect of the demand alleged to be made by the accused at the earliest point of time. Further, at the time of occurrence, PW2 was at Thoothukudi. Hence, he has no direct knowledge about the dowry demand alleged to be made by the accused. Further, he has no knowledge about the entrustment of jewels to the accused by PW1.
16.PW2 stated that PW1 was subjected to cruelty by the accused. But PW2 during his cross examination stated that:-
?1989y; vjphp tHf;fwpQh; K:yk; m.rh.1 t[ld; nrh;e;J thH tpUg;gk; ,y;iy vd;W nehl;O]; mDg;gpdhh; vd;Wk; jd;id bfhLikg;gLj;Jtjhf Twp nehl;O]; mDg;gpdhh; vd;why; rhpjhd; vjphp m.rh.1 eifia vd; jfg;gdhh; mlkhdk; itj;J U:.50000/- ,d;bdhU rnfhjup tp$abyl;Rkp ,lk; ,Ue;J eiffis mlkhdk; itj;jhh; nkYk; U:.20000/- vjphp fld; thq;fpdhh; vd;Wk; fld; thq;fpa tpguk; vdf;F neuoahf bjhpahJ?.
Hence, there are contradictions in the evidence of PW1 and PW2. PW2 is the interested witness. Hence, much importance cannot be given to the evidence of PW2.
17.PW3 is the another brother of PW1. He has deposed that the accused demanded money for the construction of the house and for that, her sister gave Rs.6 lakhs by way of pledging her jewels and by obtaining loan and the accused misbehaved towards her servant. But PW3 during his cross examination stated as follows:-
?vjphp eifia vLj;J tptuk; vdf;Fnehpilahf bjhpahJ vd; mf;fh brhy;yp bjhpa[k; vjph ntW xU bgz;iz jpUkzk; bra;J bfhz;l tptuk; kw;wth;fs; brhy;ypj;jhd; bjhpa[k;.?
18.PW3 has no direct knowledge that the accused subjected PW1 to cruelty. PW3 heard the alleged cruelty from PW1. Hence, no much importance can be given to the evidence of PW3.
19.PW4 is cited as witness to speak about the accused lived with another lady. But PW4 turned hostile and did not support the case of the prosecution.
20.On careful perusal of the evidence of PW1 to PW3, it reveals that there is no dowry demand made by the accused. Further, the accused sent a notice stating that PW1 only subjected the accused to cruelty. None of the neighbours of PW1 was examined to prove the alleged cruelty by the accused towards PW1.
21.Further, prior to the notice sent by the accused, no complaint was given by PW1 in respect of the cruelty alleged to be done by the accused against PW1 and only after sending the notice by the accused, PW1 gave the complaint. Hence, it creates doubt about the prosecution case.
22.At this juncture, it is more relevant to refer the decision reported 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.?
23.On coming to the instant case on hand, there was no procedural illegality or manifest error of the order passed by the trial court. Hence, it is not necessary to interfere with the findings of the trial court.
24.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 trial court do not call for any interference by this court.
25.In the result, this criminal revision fails and the same is dismissed.
To,
1.The Judicial Magistrate No.1, Thiruneveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.