Madras High Court
Baba Natarajan Prasad vs P.Gunasekaran on 26 August, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.Nos.635, 647 and 648 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.Nos.635, 647 and 648 of 2021
Baba Natarajan Prasad ... Appellant in all the appeals
Versus
P.Gunasekaran ...Respondent in Crl.A.No.635/21
M.Revathi ...Respondent in Crl.A.No.647/21
1. K.Marimuthu
2. M.Lakshmi ...Respondents in Crl.A.No.648/21
Prayer in all the appeals: Criminal Appeals are filed under Section 378 of
Cr.P.C., to call for the records and to set aside the common orders passed in
Crl.A.No.250, 249 & 273 of 2019 respectively dated 19.04.2021 by the
learned III Additional District and Sessions Judge, Coimbatore, reversing the
conviction of A1 and A2 and confirming the acquittal of A3 and A4 passed
by the learned Judicial Magistrate No.VI, Coimbatore, vide judgment dated
26.07.2019.
For Appellant : Mr.H.S.Mohamed Rafi
in all the appeals
1/20
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.635, 647 and 648 of 2021
For Respondents : Mr.N.Kumaran in Crl.A.No.635/22
Mr.R.Suresh for M/s.K.Selvakumaran
in Crl.A.Nos.647 & 648/2022
------
JUDGMENT
These appeals are filed by the complainant in a private complaint under Section 200 Cr.P.C. The appellant herein is the husband. The respondent/first accused in Crl.A.No.647/2021 is the wife. The respondent/second accused in Crl.A.No.635/2021 is the person who is set to have been subsequently married the first accused. There were two other accused in this case being the parents of the first accused, who were acquitted by the trial Court.
2 The appellant filed a private complaint alleging that the first accused is his wife and divorce proceedings are pending and pending the divorce proceedings, he learned that the first accused married the second accused at Maruthamalai Murugan Temple and out of the wedlock a child is also born to them. Therefore according to the appellant, the action of the first accused amounted to bigamy marriage and third accused and fourth accused are also liable to be punished for abutment of the said offence. Alternatively, 2/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 even if the marriage is also not proved, the action of the first accused in having adulterous intercourse with the second accused would amount to offence under Section 497 of IPC. The trial Court took the complaint on file in C.C.No.74 of 2018 and after appearance of the accused and furnishing of copies, upon being questioned the accused, they denied the charges as false and stood trial.
3 Thereafter, the appellant examined himself as P.W.1. He spoke about the fact that he got married to the first accused and then pending the marriage and the divorce proceedings, the first accused got married to the second accused. One Udhaykumar was examined as P.W.2. The said Udhakumar, who is the co-brother of the appellant deposed that when he went to Maruthamalai Murugan Temple on 09.04.2017, he witnessed the marriage between the first and second accused at 5.00 a.m. He had also further attended the baby shower function after the marriage and has even taken pictures and the mobile phone along with the pictures were also produced before the trial Court. One Sivagami who was the wife of the second accused was examined as P.W.3 and she has spoken about the marital dispute between both of them. One Dharmaraj, who took pictures of A1 and 3/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 A2 jointly worshiping in the temple, was examined as P.W.4. The mother of P.W.3 was examined as P.W.5. One Viswanathan who was the priest to conduct the marriage between the appellant and the first accused was examined as P.W.6. On behalf of the prosecution, Ex.P1 to Ex.P10 were marked. During the cross examination, on the side of the defence, Ex.D1 and D2 were marked. The Mobile phone belonging to P.W.1 was produced as M.O.1. Thereafter upon being questioned about the material evidence on record and the incriminating circumstances under Section 313 Cr.P.C. the accused denied the same as false. Thereafter no evidence was let in on behalf of the defence and the trial Court proceeded to hear the learned counsel on either side and by judgment dated 26.07.2019, while acquitting the accused 3 and 4, convicted the first and second accused for the offence under Section 494 IPC and imposed punishment of one year Rigorous Imprisonment and fine of Rs.2000/- each, in default, to undergo simple imprisonment for three months.
4 Aggrieved by the same, the first and second accused filed appeals in C.A.No.249 of 2019 and C.A.No.250 of 2019 against the judgment of conviction and the appellant filed two appeals in C.A.No.273 of 4/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 2019 against the acquittal of the third and fourth accused and C.A.No.304 of 2019 to enhance the sentence awarded to the first and second accused.
5 By judgment dated 19.04.2021, the learned III Additional District and Sessions Judge, Coimbatore, took up all the appeals together for consideration and while dismissing the appeals filed by the appellant herein against the acquittal and enhancement, allowed the appeal filed by the first and second accused and thereby acquitted the first and second accused for the offence under Section 494 IPC. The core finding of the lower appellate Court in Pr.No.29 is extracted as follows:
29) This court after appreciating entire evidence let in by the complainant holds that the 1st and 2nd accused are living together and they have a child but the fact that they got married on 09.04.2017 at Maruthamalai Murugan Temple is not proved beyond reasonable doubt. The trial Court without considering the contradictory statement made by P.W.2 has simple believed his version and also has taken the photographs the Ex.P6 and M.O.1 as authentic evidence of marriage and has convicted the 1st and 2nd accused under Section 494 of IPC. This Court is of the view that the said conviction of the trial court is not correct. So this court holds that the complainant has not proved beyond reasonable doubt that the 1st and 2nd accused got married on 5/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 09.04.2017 at Maruthamalai Murugan temple and they committed an offence u/s. 494 of IPC. When the offence against 1st and 2nd accused is not proved, the question of aiding them in the commission of said offence would not arise. This court further holds that it is not proved that 3rd and 4th accused committed an offence u/s.494 r/w 109 of IPC.
6 Aggrieved by the acquittal of A1 and A2 in respect of offence under Section 494 IPC and aggrieved by the dismissal of appeal filed against the acquittal of A3 and A4, present appeals are filed by the appellant.
7 Heard Mr.H.S.Mohamed Rafi, learned counsel appearing for the appellant, Mr.N.Kumaran, learned counsel appearing for the second accused and Mr.R.Suresh, learned counsel appearing for the accused 1, 2 & 4.
8 The learned counsel appearing for the appellant taking this Court through the evidence on record, would submit that by producing Ex.P1 marriage invitation, photographs and the proceedings of divorce pending between the first accused and the appellant, the factum of marriage between the appellant and the first accused and that it was subsisting was proved beyond doubt. While the said marriage was subsisting, on 09.04.2017, the 6/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 first accused got married with the second accused. P.W.2 who happened to witness the marriage had clearly and categorically deposed about the marriage taken place between the first and second accused at Maruthamalai Temple at 5.00 p.m. He would further submit that apart from the same, out of the said bigamy marriage, a child is also born to the first and second accused and the Birth Certificate of the child has been marked as Ex.P4. This apart when the first accused was pregnant through the second accused, detailed baby shower ceremony was held and the photographs regarding the same were duly produced as Ex.P6 along with the relevant certificate under Section 65(b) of the Indian Evidence Act. Therefore he would submit that this is a case where the complainant has categorically proved the offence under Section 494 IPC beyond any doubt and hence the lower appellate Court had erroneously acquitted the first and second accused. He would further submit that the lower appellate Court had acquitted the accused on the ground that they were only living together. There was no such evidence before the lower appellate Court and it was not even the case of the accused. Therefore, the finding of the lower appellate Court acquittal is unsustainable. As far as the other appeals are concerned, the learned counsel did not argue in detail, but however, would submit that even A3 and A4 had knowledge of 7/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 the bigamy marriage and they have abutted the marriage and hence they ought to have been prosecuted and the sentence of one year imprisonment imposed on the first and second accused by the trial Court is inadequate and prays for enhancement.
9 Per contra the learned counsel appearing for the accused 1, 3 and 4 would submit that this is a case where the accused did not even have fair trial. Further, the appellant did not mention or include the name of P.W.2, who is said to be witness for the marriage and it was not mentioned in the complaint that the marriage was witnessed by P.W.2.
10 As a matter of fact, drawing attention of this Court to the evidence of P.W.2, who had in his evidence deposed that he had disclosed the factum of marriage to the appellant on an earlier point of time itself and when the complainant has knowledge of the same, even though a detailed complaint is filed, the said fact is not mentioned in the complaint and P.W.2 originally was not even arrayed in the list of witnesses mentioned in the complaint. Therefore, he would submit that the entire evidence of P.W.2 is only afterthought and made him as a witness, as if he witnessed the 8/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 marriage, had the same being true, mentioning the same would have been there in the complaint and he would have been arrayed as witness in the complaint itself. Therefore, he would submit that the factum of marriage is not at all proved. He would further submit that it is a clear allegation that the first accused and the second accused got married at the Maruthamalai Murugan Temple, if so, the appellant should have summoned the register of the temple and marked the same before the Court. No such attempt was made by the appellant and therefore, he would submit that the appellant had miserably failed to prove the offence of bigamy before the trial Court.
11 Drawing attention of the above extracted paragraph, the learned counsel would submit that the appellate Court has categorically come to the conclusion that the ingredient to attract 498 IPC is not expressly proved and the relationship between the first and second accused can only be taken as living together. The learned counsel also relied upon the judgment of the Division Bench of this Court in S.Subbulakshmi @ Sunitha vs. S.Subramanian @ Saravanan reported in 2019 (3) CTC 257 morefully relying upon Paragraph Nos.44,49,51 of the said judgment would submit that factum of marriage has to be proved beyond doubt and it cannot be presumed 9/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 could have taken place especially to convict the accused 1 and 2 for the offence under Section 494 IPC. He would further submit that there is absolutely no further evidence as against third and fourth accused and therefore he would submit that in an appeal against acquittal this Court would be slow to interfere especially when the appellate Court has acquitted the accused by a well considered judgment.
12 Mr.Kumar, the learned counsel appearing for the second accused while adopting the submissions made on behalf of the first accused, would also submit that in this case already the parties facing several proceedings before the Family Court and in the other Courts. This is a case where the petitioner is persuading the matter only to wreck vengeance against the parties. It is also brought to the notice of this Court that the appellant filed a divorce petition which was subsequently withdrawn by him. The divorce petition filed by the first accused is pending before the Family Court. Therefore he would submit that from the very fact that the appellant has withdrawn the petition seeking divorce filed by him itself clear that there is motive for the appellant to harass the first accused and subsequently the second accused is also being harassed. Therefore, he would submit that the 10/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 appeal against acquittal should be dismissed.
13 I have considered rival submissions made by the learned counsel appearing on either side and perused the materials on record.
14 First consideration, the appeal against the acquittal in respect of accused 1 & 2, it is seen that the finding of the lower appellate Court as extracted above is that the A1 and A2 are living together and their marriage is not proved beyond doubt. In this regard I am of the view that the finding of the lower appellate court is not at all possible view because it is not even the case of the accused 1 & 2 that they were living together and therefore this Court has to interfere with the appeal against acquittal. Now coming to the question as to whether the appellant has proved that the marriage taken place beyond doubt, as far as the reliance on evidence of P.W.2 is concerned, as pointed out by the learned counsel for the accused, appellant earliest point of time in the complaint has not mentioned name of P.W.2 and did not even mention or include in the list of witnesses. But evidence of P.W.2 is not the sole evidence based on which, the trial Court convicted the accused 1 & 2, the fact is corroborated by the production of Birth Certificate of the child 11/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 born to the first accused and the second accused. In the Birth Certificate it is clearly mentioned that the first accused is mother and the second accused is father. This apart, a detailed baby shower function has also been conducted and pictures of the same has also been produced. In my view that these are material evidence, which are pointing out towards incriminating circumstances of a bigamy marriage. When the same is put to the accused 1 and 2 under Section 313 Cr.P.C. at that point, if the they merely living together, it was expected from the accused to make such a statement before the trial Court that they are only living together without performing any marriage. However, absolutely no such statement has been made either during questioning under Section 313 Cr.P.C or while getting into box. In the absence of the same, the trial Court considering all the evidence when it come to the conclusion that the marriage between A1 and A2 is proved, judgment of the lower appellate Court upturning the same is firstly on a presumption and surmise of disown and secondly not in accordance with law by considering the trial court's finding in the proper perspective and therefore I am of the view that the same is liable to be interfered with and I hold that the offence under Section 494 IPC is proved beyond doubt as against the accused 1 and 2.
12/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 15 Now coming to the other appeal against acquittal of A3 and A4 except the evidence of P.W.1, there is no other evidence to connect with the offence. As already stated supra, P.W.2 evidence cannot be relied upon to convict the accused 3 and 4 and therefore the trial Court as well as the lower appellate Court have given finding that the offence of abutment against the accused 3 and 4 has not been proved and acquitted them.
16 In the result, the criminal appeal in Crl.A.No.648 of 2021 is dismissed and in view of my finding of guilt upturning the appeal against acquittal, post the appeals in Crl.A.Nos.635 & 647 of 2021 on 01.09.2022 "for question of sentence".
26.08.2022 Index : yes/no Speaking/Non-speaking order cgi To
1. The III Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate No.VI, Coimbatore.
13/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 D.BHARATHA CHAKRAVARTHY, J., cgi Crl.A.Nos.635, 647 and 648 of 2021 26.08.2022 14/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 Crl.A.Nos.635, 647 and 648 of 2021 D.BHARATHA CHAKRAVARTHY, J.
Pursuant to the judgment of this Court, the accused are present before this Court for consideration of question of sentence.
2. Learned counsel for the appellant would submit that the punishment should be commensurate enough to the seriousness of the offence and the mental torture undergone by the appellant. Learned counsel relied upon the judgment of the Hon'ble Supreme Court of India in State of Punjab vs Bawa Singh1 more specifically relied upon paragraphs 11 to 18 in which the Hon'ble Supreme Court of India had categorically held that undue sympathy of imposing inadequate sentence would do more harm to the justice system and undermine public confidence and efficiency of law. The Hon'ble Supreme Court of India also held that the punishment in a given case must depend upon the atrocity of the crime, conduct of the criminal and the defenceless and unprotected state of the victim. The Hon'ble Supreme Court of India has also held that the Court should impose punishment fitting to the crime so that the Court reflects the public abhorrence of the crime. The right 1 2015 3 SCC 441 15/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 of the victim should also be kept in mind while imposing punishment. Learned counsel also relied upon the judgment of the Hon'ble Supreme Court of India in The State of MP vs Udayban (Crl.A.No.182 of 2016) wherein the Hon'ble Supreme Court of India had held that when there was any mitigating circumstances to take a lenient view, the principle governing proper sentencing should be followed by the Courts and it is the duty of the Court, awarding sentence any undue leniency in awarding sentence.
3. I have considered the said submissions.
4. In fact, the dictum of the Hon'ble Supreme Court of India as above has to be borne in mind. The following are the circumstances in this case in which this Court takes into account:
(a) The both parties, that is, the petitioner / appellant and the first respondent have been fighting acrimonious battle regarding their marital affairs before the appropriate Court. The allegations made by either side are unhealthy. To extract the allegations made by the 16/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 appellant / husband after marrying the first accused, who was fifteen years younger to him, in H.M.O.P.No.515 of 2012, which is as follows:
“14. kDjhuh; gzpt[ld; rkh;g;gpgJ ahbjdpy;.
,e;epiyapy; kUh;Jthplk; kPz;Lk;
FHe;ijngw;d;ikf;fhf brd;wdh;/ mg;nghJ
vjph;kDjhuUf;F Pre Pregnancy Test kw;Wk;
Urinary Infection rpfpr;ira[k; nkw;bfhs;sg;gl;lJ/ mr;rka';fspy; kUj;Jth;lk; bry;y vjph;kDjhuh; kpft[k; ja';fpdhh;/ rpyrka';fspy; vjph;kDjhuh; gaj;JlDk;.
eLf;fj;JlDk; nfhgKlDk; ele;J bfhz;lhh;/ mjw;fhd fhuzk; vjph;kDjhuhpd; clypy; cs;s cWg;g[fspd; khw;w';fs; mjw;fhd fhuz';fis kUj;Jthplk; kDjhuh; nfl;L bjhpe;J bfhz;lhy; jdJ thH;f;ifapd; cz;ikepiy fz;L bfhs;sg;gLk; vd;gjhYk; ,e;j cly; cWg;g[fspd; Vw;gl;Ls;s khw;w';fs; rk;ge;jkhf kDjhuh; nfl;lnghJ jhd;.
15/ kDjhuh; gzpt[ld; rkh;gpg;gJ ahbjdpy;. vjph;kDjhuhpd; cz;ikahd RaU:gk; btspapy;
tu bjhl';fpaJ/ nkYk; jpUkzj;jpw;F
Kd;g[s;s thH;f;if xGf;fkw;wjhf
,Ue;Js;sJ/ mjid vjph;kDjhunu. kDjhuh;
Kd;g[k;. gy g";rhaj;jhh;fs; Kd;dpiyapYk;
Twpa[s;shh;/ “vjph;kDjhuh; Twpait. jhd;
gj;J tUl';fshf jd; gUt tajpy;
mDgtpf;f ntz;oaij vy;yhk; ed;whf
mDgtpj;njd;/ ,jw;F ,g;g vd;d
bra;aKoa[k;. eP';fs; c';f tajpy;
mDgtpf;fhjJ c';fsJ jtW. bgz;fs;
jpUkzj;jpw;F Kd;ng vy;yhk; Rf';fisa[k;
mDgtpj;J tpl;L bfl;Lg; ngha; jhd;
jpUkzk; bra;fpwhh;fs;. ehDk; mg;goj;jhd;.
cd;dhy; vd;d bra;aKoa[k;” vd;W Twp
17/20
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.635, 647 and 648 of 2021
Tr;rypl;L mUtUg;ghd thh;j;ijfshy;
kDjhuiu jpl;Lthh;/”
This is the first circumstances which I take into consideration;
(b) The second circumstances is that now, there is a child which is born of bigamous wedlock and the child is currently aged about four years which has to be taken care of;
(c) the third factor is that on account of these proceedings and connected matters, the parties have suffered.
4. Taking all these factors into consideration, keeping in mind the principles as argued by the learned counsel for the appellant in mind, the following sentence is imposed:
(i) Both the accused shall undergo imprisonment till the rising of the Court;
(ii) A fine of Rs.20,000/- each is imposed against both the accused, which shall be paid within a period of two weeks' time from the date of receipt of copy of this order 18/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 before the Trial Court and in default of payment of fine, shall undergo simple imprisonment for a period of three months;
(iii) Out of the total fine amount paid, a sum of Rs.20,000/- shall be paid out to the appellant as compensation.
01.09.2022 19/20 https://www.mhc.tn.gov.in/judis Crl.A.Nos.635, 647 and 648 of 2021 D.BHARATHA CHAKRAVARTHY, J.
drm Crl.A.Nos.635, 647 and 648 of 2021 01.09.2022 20/20 https://www.mhc.tn.gov.in/judis