Madras High Court
Ramasamy … vs The State on 19 January, 2023
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.No.231 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.231 of 2020
Ramasamy … Petitioner
Vs
The State, represented by
Inspector of Police,
All Women Police Station,
Ariyalur District. … Respondent
Prayer: Criminal Revision Petition filed under Section 397 read with
401 of Criminal Procedure Code against the conviction and sentence
imposed in C.A.No.12 of 2019 dated 22.01.2020 on the file of Additional
District Sessions Judge, Ariyalur confirming the conviction and sentence
under Section 494 of I.P.C. Imposed in C.C.No.133 of 2012 dated
03.01.2019 on the file of Judicial Magistrate-I, Ariyalur under Section
494 of I.P.C. and sentenced to two years R.I. and to pay a fine of Rs.500/-
and the said conviction and sentence imposed is unjust and illegal.
For Petitioner : Mr.R.Sankarasubbu
For Respondent : R.S.Sugendran
Additional Public Prosecutor
ORDER
This Revision case has been filed by the petitioner to set aside the https://www.mhc.tn.gov.in/judis Page No.1/12 Crl.R.C.No.231 of 2020 order made in C.A.No.12 of 2019 dated 22.01.2020 on the file of Additional District Sessions Judge, Ariyalur.
2.The respondent police registered a case against the petitioner and others in Crime No.7 of 2011 for the offences under section 498A, 494 r/w. 4 of Dowry Prohibition Act against the present petitioner and against the 2nd accused for the offences under section 494 r/w 109 I.P.C., against the accused 3rd and 4th for the offences under sections 498A and 494 r/w 109 I.P.C, against 5th and 6th accused for the offences under section 494 r/w 109 I.P.C.
3.After investigation, charge sheet was laid by the prosecution before the learned Judicial Magistrate, Ariyalur. The learned Magistrate after completing the formalities, took the charge on file in C.C.No.133 of 2012 and the framed the charges against the 1st accused, the present petitioner herein for the offences under section 498A I.P.C. and section 4 of the Dowry prohibition Act, against the petitioner, 1st, 3rd and 4th accused framed the charges under section 294(b), 506(i) against the petitioner, 3 and 4th accused, against the 2nd accused for the offence under section 494, against 2nd accused to 10th accused for the offence under https://www.mhc.tn.gov.in/judis Page No.2/12 Crl.R.C.No.231 of 2020 section 494 r/w 109 I.P.C
4.After completing the formalities, during the trial, on the side of the prosecution 7 witnesses were examined as PW1 to PW7 and 3 documents were marked as Ex.P1 to Ex.P3. On conclusion of trial, hearing the arguments advanced on either side, the trial Court found guilt of the present petitioner for the offences under section 494 I.P.C and convicted and sentenced to undergo two years rigorous imprisonment and pay fine of Rs.500/- (Rupees Five Hundred only). The 2nd to 10th accused were convicted and sentenced to undergo six months imprisonment and pay fine of Rs.500/- (Rupees Five Hundred only) each for the offences under section 494 r/w 109 I.P.C and however, acquitted for the other charges. Further, he was convicted and sentenced to undergo 6 months imprisonment and pay fine of Rs.10000/- (Rupees Ten Thousand Only) in default to undergo 15 days simple imprisonment and the other accused were found guilty for the other charged offences.
5.Challenging the said judgment of conviction and sentence, the accused 1 to 10 preferred an appeal before the Principal District and Sessions Judge, Ariyalur in Crl.A.No.12 of 2019 and the same was made https://www.mhc.tn.gov.in/judis Page No.3/12 Crl.R.C.No.231 of 2020 over to the Additional Sessions Judge, Ariyalur.
6.Learned Additional Sessions Judge after hearing the arguments, considered the materials and partly allowed the appeal and confirmed the conviction and sentence passed against the 1st accused for the offence under section 494 I.P.C. alone, however, allowed the appeal and set aside the judgment and conviction of sentence passed against the 1st accused for the offence under section 4 of the Dowry Prohibition Act and also allowed the appeal filed by other accused 2 to 10 and set aside the judgment of conviction and sentence passed by the trial Court.
7.Aggrieved over the same, neither the victim nor the State has preferred any appeal. However, 1st accused has filed the present Revision case, challenging the judgment of conviction and sentence passed as against him for the offence under section 494 I.P.C.
8.Learned counsel for the petitioner would submit that the petitioner never married 2nd wife namely the 2nd accused during the subsistence of the first marriage with the de-facto complainant. Absolutely there is no proof to show that the petitioner married another https://www.mhc.tn.gov.in/judis Page No.4/12 Crl.R.C.No.231 of 2020 woman during the subsistence of the 1st marriage. Since because a child is born to the 2nd accused through the petitioner, does not mean that the petitioner married the 2nd accused and only out of the wedlock, she begotten the child. The prosecution has not proved the charge for the offence under section 494 I.P.C in the manner known to law. The Ex.P3 is inadmissible in evidence. Though the trial Court found not guilt of the accused for the offence under section 4 of the Dowry Prohibition Act and the Appellant Court also not found guilt of the other accused for the offence under section 494 I.P.C r/w 109 I.P.C from the very same materials and erroneously found guilty of the petitioner for the offence under section 494 I.P.C which is against the law. Therefore, the finding of the Courts below are perverse. Therefore, in the absence of any documentary proof that the petitioner married another woman namely the 2nd accused during the subsistence of the 1st marriage with the de- facto complainant. The conviction recorded for the said charge is against law. Therefore, the judgment of the trial Court as against the petitioner regarding conviction under section 494 I.P.C is liable to be set aside the appeal to be allowed and the petitioner may be set at liberty.
9.Learned Additional Public Prosecutor would submit that during https://www.mhc.tn.gov.in/judis Page No.5/12 Crl.R.C.No.231 of 2020 the subsistence of the 1st marriage, the 1st accused married the 2nd accused and the 2nd accused gave birth to the child through the petitioner and therefore, he has committed an offence of bigamy, which is an offence under section 494 I.P.C. The witnesses have clearly spoken about the 2nd marriage of the petitioner with the 2nd accused and though in this case the de-facto complainant is not an eye witness. But, however, PW6, who was said to be an eye witness has clearly deposed that he witnessed the marriage of the petitioner with the 2nd accused. Therefore, once it is proved that during the subsistence of the 1st marriage, if a man gets married with other woman, it would attract the offence under section 494 I.P.C. Therefore, the trial Court rightly appreciated the evidence of PW6 is very clear and who is an eye witness to the marriage, who only informed the PW1, de-facto complainant. Therefore, the evidence of PW1, de-facto complainant was corroborated with the evidence of PW6. Even though the Courts below found that the demand of dowry was not satisfactorily proved beyond all reasonable doubt in the manner known to law, however found guilty of the petitioner for the offences under section 494 I.P.C. Therefore, there is no merits in the Revision and the Revision case is liable to be dismissed.
https://www.mhc.tn.gov.in/judis Page No.6/12 Crl.R.C.No.231 of 2020
10.Heard the arguments advanced by the learned counsel appearing on either side and perused the materials available on record before this Court.
11.The specific case of the prosecution is that the petitioner is the husband of the de-facto complainant and the 2nd accused is the 2nd wife of the petitioner. The other accused are the relatives, who initiated and participated during the marriage between the petitioner and the 2nd accused. The petitioner demanded dowry and also caused cruelty on her. Since, she could not meet out the demand made by the petitioner and during the subsistence of the 1st marriage, the petitioner got married with another woman namely 2nd accused on 21.04.2011 in Perumal Kovil situated at Ariyalur. Therefore, based on the complaint given by the de- facto complainant PW1, a case was registered against the petitioner and the other accused. After investigation, laid the charge sheet for the offences under section 498A and 494 r/w 4 of Dowry Prohibition Act. Therefore the present case.
12.On perusal of the entire records, the de-facto complainant was https://www.mhc.tn.gov.in/judis Page No.7/12 Crl.R.C.No.231 of 2020 examined as PW1 and the eye witness who has seen the marriage between the petitioner and the 2nd accused dated 21.04.2011 was examined as PW6. In this case, PW6 is an eye witness and in turn the evidence of PW6 clearly shows that he has seen the marriage. He informed the de-facto complainant, PW1 who is the wife of the petitioner. Therefore, the de-facto complainant preferred a complaint before the jurisdictional police and Ex.P3 is the birth certificate of the child born to the 2nd accused, in which the name of the petitioner is mentioned as the father of the child.
13.However, the learned counsel for the Revisional Petitioner contended that mere giving birth to a child is not a proof of marriage. A person having live-in-relationship is also able to give birth to a child, which would not attract the offence under section 494 I.P.C, unless the 2nd marriage is proved in the manner known to law. But however the evidence of PW6 clearly shows that he has seen the marriage of the petitioner with the 2nd accused on 21.04.2011. In fact PW6 informed the wife of the petitioner who is PW1, the de-facto complainant.
14.In this case, Ex.P3 is the only supportive document. Though https://www.mhc.tn.gov.in/judis Page No.8/12 Crl.R.C.No.231 of 2020 mere giving birth to a child is not to be a proof of marriage, but, however the complaint is given by the de-facto complainant on specific allegation that on 21.04.2011 the petitioner got married with the 2nd accused in a Perumal kovil at Ariyalur and the birth certificate of the child born to the 2nd accused also shows that the petitioner is the father of the child, PW6 also corroborated the evidence of PW1 and therefore, e venthoughthere is no written documents to show that the petitioner got married with the 2nd accused. But, the fact remains that during the subsistence of the 1 st marriage with the de-facto complainant 2nd marriage on 21.04.2011, the previous marriage of the petitioner with de- facto complainant was subsisting and not dissolved.
15.Therefore, in this case both the trial Court as well as the Appellate Court rightly appreciated and re-appreciated the material evidence and convicted him. While exercising the Revisional jurisdiction, this Court cannot sit in the arm chair of the Appellate Court and re-appreciate the evidence and therefore, this Court does not find any perversity in appreciation of the evidence of both the Courts below and therefore, this Court finds that there is no merit in the revision case and https://www.mhc.tn.gov.in/judis Page No.9/12 Crl.R.C.No.231 of 2020 same is liable to be dismissed. The trial Court is directed to take steps to secure the petitioner through the respondent police.
16.With the above direction, this Revision is dismissed. Consequently, connected miscellaneous petition is closed.
19.01.2023 Index: Yes/ No Speaking Order : Yes/ No gba To
1.The Additional District Sessions Judge, Ariyalur.
2.The Judicial Magistrate-I, Ariyalur.
3.The Inspector of Police, All Women Police Station, Ariyalur District.
https://www.mhc.tn.gov.in/judis Page No.10/12 Crl.R.C.No.231 of 2020 P.VELMURUGAN,J.
gba Crl.R.C.No.231 of 2020 https://www.mhc.tn.gov.in/judis Page No.11/12 Crl.R.C.No.231 of 2020 and C.M.P.No.1680 of 2020 19.01.2023 https://www.mhc.tn.gov.in/judis Page No.12/12