Madras High Court
Gopi @ Gopikrishnan vs The State Rep. By on 5 June, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation
26.04.2018
Date of Judgment
05.06.2018
DATED: 05.06.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.844 of 2008
1.Gopi @ Gopikrishnan
2.Puspha : Revision
Petitioners/
Appellants/A1 and A7
Vs.
The State rep. by
the Inspector of Police,
All Women Police Station,
Dindigul. : Respondent/
Respondent/Complainant
Prayer: Criminal Revision Petition has been filed under Section 397 r/w
401 of Criminal Procedure Code against the judgment, dated 13.09.2007 made in
C.C.No.58 of 2005 on the file of the Judicial Magistrate No.II, Dindigul, as
confirmed by the judgment, dated 28.08.2008 made in C.A.No.46 of 2007 on the
file of the Additional District Sessions Judge (Fast Track Court), Dindigul.
!For Revision Petitioners : Mr.N.Ananda Kumar
^For Respondent : M/s.M.Anandha Devi
Government
Advocate (Criminal side)
:JUDGMENT
This Criminal Revision is directed against the judgment passed by the Additional District and Sessions Judge (Fast Track Court), Dindigul, dated 28.08.2008 made in C.A.No.46 of 2007.
2.The case of the prosecution is that the marriage between the first accused and PW1 took place on 02.11.1999 and at the time of marriage, the parents of PW1 gave 15 sovereigns of jewels, Rs.25,000/- and household articles worth about Rs.5,000/- and due to the wedlock, she begotten a female child and thereafter, A1 along with the other accused demanded dowry. It is the further case of the prosecution that on 05.09.2003, A1 got married A7.
3.In the trial court, 10 witnesses were examined and 11 Exhibits were marked. When the accused were questioned about the incriminating circumstances, they denied the same. The trial court convicted the revision petitioners/A1 and A7 for the offence under Section 494 IPC and sentenced them to undergo two years year Rigorous Imprisonment each and to pay a fine of Rs.500/- each, in default to undergo 3 months RI. Aggrieved by the judgment passed by the trial court, the revision petitioners/A1 and A7 filed an appeal in C.A.No.46 of 2007, which was heard by the Additional District and Sessions Judge, (Fast Track Court), Dindigul. The first appellate Court confirmed the findings of the trial court. Hence, this criminal revision.
4.The learned counsel for the revision petitioners/A1 and A7 submitted that the prosecution has failed to constitute the offence alleged against the revision petitioners and there are contradictions in material particulars between the evidence of prosecution witnesses and some of the prosecution witnesses had not witnessed the occurrence itself and the courts below failed to prove the offence under Section of 494 IPC and the courts below failed to see that a prosecution for bigamy, the 2nd marriage, has to be proved as a fact and it must also be proved that the necessary ceremonies had been performed, but in this case, the witnesses have not proved that the essential ceremonies had been performed and there is no evidence regarding the 2nd marriage and the marriage has also not been registered and the courts below failed to see that PW2 to PW8 are close relatives of PW1 and the prosecution failed to examine the independent witnesses and the place and time of marriage have not been spoken by PW4, who is eye witness of the case and the prosecution has failed to prove the case beyond reasonable doubt and the revision petitioners/A1 and A7 are entitled to acquittal and prays that the criminal revision may be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the revision petitioners, which does not require any interference by this court and revision petitioners/A1 and A7 are not entitled for acquittal and prays that the criminal revision may be dismissed.
6.Heard both sides and perused the materials available on record.
7.The first contention put forth on the side of the revision petitioners is that the offence under Section 494 IPC is covered under Chapter XX IPC and hence, the complainant has to file a private complaint, but in this case, the complaint was given to the police and on the basis of the complaint, the case was registered as against the accused under Sections 498(A) and 494 IPC and it was not corrected and hence, the learned Judicial Magistrate has to proceed as per Chapter XV Cr.P.C and take cognizance, record sworn statement of the complainant and the witnesses and then, proceeded to issue process in case, the court finds materials for the same and hence, the registration of criminal case as against the accused is illegal and hence, the revision petitioners/A1 and A7 are entitled to acquittal. For that, the learned counsel for the revision petitioners submitted the following rulings:-
1.(2011)3 SCC (Cri) 267 (A.Subash Babu vs. State of Andhra Pradesh and another);
2.1995-2-L.W.(Crl.) 478 (Navaneetham Vs. Ellappan and another); and 3.1996(1) MLJ (Crl) 263 (Karakappa vs. Renuka)
8.In this case, charge sheet was filed under Sections 498(A) and 494 IPC. On careful perusal of the above rulings submitted by the learned counsel for the revision petitioners, wherein it is stated that for the offence under Section 494 IPC, the aggrieved party has to file a private complaint.
9.At this juncture, it is necessary to refer Section 155 (4) Cr.P.C, which reads as follows:-
?155.(4)Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.?
10.In the instant case on hand, the complaint was not given for the offence under Section 494 IPC alone, but it was given for dowry demand and Bigamy. As per Section 155(4), where case relates to two or more offences of where at least one offence is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
11.In this case, the complaint was given by the complainant for dowry demand and Bigamy. The offence under Section 494(A) IPC is cognizable and hence, the complaint was received and then, the case was registered under Sections 498(A) and 494 IPC.
12.In the judgment reported in (2011) 3 SCC (Cri) 267 (A.Subash Babu vs. State of Andhra Pradesh and another), the Hon'ble Apex Court held as follows:-
?155.(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
50.Here in this case in the charge-sheet it is mentioned that the appellant has also committed the offence punishable under Section 420 of the Penal Code which is cognizable and therefore this is a case which relates to two or more offences of cognizable case notwithstanding that the other offences are non-cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC.
The case of Respondent 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498-A IPC. Hence, the registration of the case on the basis of the complaint given by the first wife of A1 is legal.
13.In the decisions reported in CDJ 1995 Kar HC 063 (Karakappa Vs. Renuka) and 1995-2-L.W.(Crl.) 478 (Navaneetham vs. Ellappan and another), the offence against the accused is only under Section 494 IPC. The offence under Section 494 comes under Chapter XX and for that private complaint only preferred. But, in this case, the offences are under Sections 498(A) and 494 IPC. Hence, the aggrieved person gave complaint to the police and on the basis of the complaint, the police registered the case. Hence, the registration of the case under Sections 498(A) and 494 IPC as against the accused is correct. Therefore, it is held that it is not necessary to file a private complaint by the first wife as against her husband, since he committed the offence punishable under Sections 498(A) and 494 IPC.
14.PW1 in her complaint stated that on 12.11.1999, the marriage between her and A1 was solemnised as per the Hindu Ceremonies and out of the wedlock, she gave birth to a female child on 20.10.2000 and her husband is in the habit of drinking liquor and demanded Rs.25,000/- and at the instigation of the parents of A1, she was subjected to cruelty on 05.08.2003 and A2 to A6 demanded dowry and drove her from the matrimonial home and on 05.09.2003, at the instigation of A2 to A6 in the presence of A8 and A9, A1 married A7 in the bottom of Palani Temple and she and her brother Balu went to the house of A1 and when it was questioned, A1 pulled her hair and drove her out and then, she gave the complaint before the police.
15.PW1 in her evidence stated that on 12.11.1999, the marriage between her and A1 was solemnised as per the Hindu Customs and due to wedlock, she gave birth a female child 20.10.1999 and her husband is in the habit of drinking liquor and demanded Rs.25,000/- and at the instigation of the parents of A1, A1 subjected her to cruelty and on 05.08.2003, A2 to A6 demanded dowry and subjected her to cruelty and they drove her from the matrimonial home and on 05.09.2003, at the instigation of A2 to A6 in the presence of A8 and A9, A1 married A7 in the bottom of Palani Temple and it was witnessed by Muthu and Ganesan and his brother Balu, but the above marriage was not registered and then, she and her brother Balu went to the house of A1 and they saw that A1 and A7 were in marriage pose and A2 to A6 were also available in that place and PW1 with her went to the house of A1 and it was questioned by PW1, A1 pulled her hair and drove her out and then, she gave the complaint before the police. Hence, the averments found in the evidence of PW1 is corroborated with the averments contained in Ex.P1 complaint.
16.PW2 is the brother of PW1, who spoke about the second marriage of A1 with A7. PW2 stated during his evidence that after the birth of a female child, A1 to A6 demanded dowry and drove PW1 out of the matrimonial home and when, he was in the bus stop Muthu and Ganesh came and told him that A1 married A7 in the bottom of Palani temple and he and PW1 went to the house of A1 and they saw that A1 and A7 were found in marriage pose and when it was questioned by them, A1 pulled the hair of his sister and then, filed a private complaint before the Judicial Magistrate. Hence, PW1's evidence is corroborated with the evidence of PW2.
17.PW3 is the mother of PW1. PW3 stated that after the birth of female child, A1 to A6 demanded dowry and they drove PW1 out of the matrimonial home and then, she heard that A1 married A7 in a temple at Palani and when, it was questioned by PW1 and PW2, A1 pulled her hair and A1 to A6 drove PW1 out of the matrimonial home.
18.PW4 is the person, who saw the second marriage of A1 and A7. PW4 stated that after the birth of the female child to PW1, A1 to A6 had demanded dowry and drove her from the matrimonial home and when he went to Palani on 05.09.2003, he saw in the bottom of Palani Temple, A1 got married A7 and in the second marriage, all the accused were present and then, he informed the second marriage of A1 with A7 to PW1 and PW2 along with PW1 went to the house of A1 on the same day and when they questioned the second marriage of A1 to A6, A1 pulled the hair of PW1 and drove her out of the matrimonial home.
19.PW5 is cited as one of the witnesses, who saw the second marriage of A1 and A7, but PW5 turned hostile and did not support the case of the prosecution. PW5 during her chief examination stated that due to dispute, PW1 separated from her husband. But while cross examination by the counsel for the accused, she has stated as follows:-
?g[];gh vd;w bgz;Zld; ,Ue;J tUtJ vdf;F bjhpahJ vd;why; rhpjhd;. vjphp g[];gh vd;gtUld; nrh;e;J thH;e;J tUtJ vdf;F bjhpahJ. Vjphp nfhgp fpU\;zht[ld; g[];ght[f;F jpUkzk; ele;jij ahnuh ngrpf; bfhz;lhh;fs; vd;gJ gw;wp bjhpa[k;. me;j jpUkzk; gw;wp vdf;F neuoahf bjhpahJ.
20.PW5 has not denied that A1 lived with A7 and the marriage between A1 and A7. She simply stated that she did not know whether A1 lived with A7. Hence, PW5's evidence cannot be rejected in toto. PW6 and PW7 are cited as witnesses, who saw the second marriage of A1 and A7. PW6 and PW7 have turned hostile and they did not support the case of the prosecution. Even though, PW6 and PW7 turned hostile, during their evidence, they have stated that they did not know whether any marriage solemnised between A1 and A7. They have not denied that no marriage was solemnised between A1 and A7. Hence, their evidence cannot be rejected in toto.
21.For all the reasons stated above, this court is of the considered view that the prosecution has proved the case beyond reasonable doubt and the impugned judgment of conviction and sentence are liable to be confirmed. However, considering the family circumstances of the revision petitioners, the sentence imposed on the revision petitioners by the courts below is modified into one year R/I for the offence under Section 494 IPC. In respect of fine amount, the findings of the Courts below are confirmed. The period of sentence already undergone by the revision petitioners/A1 and A7 is set off under Section 428 of Cr.P.C.
22.With the above modification, this criminal revision is partly allowed.
To,
1.The Additional District and Sessions Judge, (Fast Track Court), Dindigul.
2.The Judicial Magistrate No.II, Dindigul.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.