Madras High Court
Murugaboopathy vs State: The Inspector Of Police on 27 November, 2014
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 10.02.2020
Date of Judgment 10.06.2020
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.RC(MD)No.209 of 2015
1.Murugaboopathy
2.Kannuchamy
3.Ariyanachi
4.Muthirulayee : Petitioners/Appellants/A1 to A4
Vs.
State: The Inspector of Police,
Paramakudi All Women Police Station,
Paramakudi,
Ramnad District.
(Crime No.1 of 2007) : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w
401 of Criminal Procedure Code against the judgment passed in
C.A.No.11 of 2013, dated 27.11.2014 by the Additional District and
Sessions Judge, Ramanathapuram, confirming the judgment of the
Judicial Magistrate, Mudukulathur, passed in C.C.No.36 of 2008,
dated 27.02.2013.
For Petitioners : Mr.S.Kameswaran
For Respondent : Mr.A.P.G.Ohm Chairma Prabhu
Government Advocate
(Criminal side)
http://www.judis.nic.in
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JUDGMENT
This Criminal Revision is filed against the judgment passed in C.A.No.11 of 2013, dated 27.11.2014 by the Additional District and Sessions Judge, Ramanathapuram, confirming the judgment of the Judicial Magistrate, Mudukulathur, passed in C.C.No.36 of 2008, dated 27.02.2013.
2.The case of the prosecution is that the marriage between the de-facto complainant/PW1 Murugeswari and A1/Murugaboopathy was solemnised in the year 1998 and at the time of marriage, the parents of the de-facto complainant gave 12.5 sovereigns of gold jewels and cash of Rs.40,000/- as dowry and subsequently, A1 along with the other accused demanded 10 sovereigns of gold jewels as further dowry from the de-facto complainant and after conciliation meeting was conducted, reunited the couple by the panchayatars and the de- facto complainant returned back to her nuptial home and she gave birth of a female child and thereafter, she came to know that A1 married A8/Murugeswari as second wife with the help of A2 to A4 and thereafter, all the accused made cruelty to the de-facto complainant for further dowry and also threatened her. In this connection, the Inspector of Police, attached to Paramakudi All Women Police Station, has filed a case against the accused persons. http://www.judis.nic.in 3
3.The trial court, after proper appreciation of the evidence both oral and documentary, convicted the 1st petitioner/A1 for the offence under sections 498(A) IPC and section 4 of Dowry Prohibition Act and sentenced him to undergo each one year rigorous imprisonment and to pay a fine of Rs.200/- each, in default to undergo one month simple imprisonment for each offence and convicted A2 to A4 and sentenced them to undergo rigorous imprisonment for one year each and to pay a fine of Rs.200/-, in default to undergo one month simple imprisonment for the offence under section 4 of Dowry Prohibition Act and acquitted A5 to A8 from the charges levelled against them. Aggrieved by the judgment of the trial court, the petitioners/A1 to A4 preferred appeal before the first appellate court, which was also confirmed the findings of the trial court. Against which, the petitioners/A1 to A4 are before this court.
4.Heard both sides and perused the materials available on record.
5.The main contention raised on the side of the revision petitioners/A1 to A4 is that to invoke section 498(A) IPC, a woman should have subjected to cruelty, which is likely to drive her to commit suicide or there should be a demand for any property or valuable security and in the present case, no such allegation is made http://www.judis.nic.in 4 against the petitioners and in the absence of any such allegation, no proceedings can be initiated against the petitioners and there should be a prima facie allegation in the complaint that a demand was made personally by the concerned accused and such demand was caused cruelty and in the present case, there is no prima facie case levelled against the petitioners and the allegations did not amount to harassment with a view to coerce informant or her relation to meet any unlawful demand for any property and prays that the petitioners/A1 to A4 are entitled to acquittal.
6.PW1 is the victim and she is the wife of A1. A2 and A3 are the in-laws of PW1. A4 is the sister-in-law of PW1. In respect of the occurrence, PW1 gave Ex.P1 complaint. PW1 in her complaint and evidence stated that at the time of marriage, it was agreed to give 12 sovereigns of gold to her and Rs.40,000/- as cash to A1, which was given in three instalments by way of selling the properties of her father and she lived with A1 for three years jointly in the matrimonial home and at that time, all the accused demanded dowry and drove her from the matrimonial home and then panchayat was conducted and afterwards, she went to the matrimonial home and then, all the accused demanded dowry and drove her from the matrimonial home and then, she gave Ex.P1 complaint.
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7.To prove that Rs.40,000/- was given as dowry to A1 by way of selling the properties of the parents of PW1, the sale deed stood in the name of the parents of PW1 and the copies of the sale deeds were not produced and marked on the side of the prosecution. PW1 either in her complaint or evidence has not stated that to whom, the properties of her parents were sold. To prove it, the above purchasers were not examined on the side of the prosecution. Hence, at the time of marriage, Rs.40,000/- was given in three instalments by way of selling the properties of the parents of PW1 is not proved.
8.PW1 during her evidence stated that the marriage between her and A1 was solemnised in the year 1997. But she gave Ex.P1 complaint in the year 2006. PW1 deposed that eight years after the marriage, all the accused demanded 10 sovereigns of jewels and they drove her from the matrimonial home and panchayat was conduct in this regard and she went to the matrimonial home and then, all the accused demanded dowry and drove her from the matrimonial home. To prove that the accused demanded dowry, PW2 to PW4 were examined. PW2 is the mother of PW1. PW3 is the father of PW1. PW4 is the relative of PW1. PW2 deposed that at the time of marriage, her daughter was given 12 sovereigns of gold and Rs.40,000/- was given in three instalments by way of selling their properties and three years after the marriage, all the accused demanded 10 sovereigns of jewels http://www.judis.nic.in 6 and drove her daughter to her house and afterwards her daughter was with her and then panchayat was conducted and her daughter went to her matrimonial home and then, all the accused subjected her daughter to cruelty and then, her daughter gave Ex.P1 complaint.
9.PW2 also admitted during her cross examination that no document was produced to prove the sale of their properties. On careful perusal of the evidence of PW1 and PW2, it reveals that PW1 came to her parents house three years after her marriage and lived with her parents. PW1 and PW2 deposed that after PW1 came to the house of PW2, panchayat was conducted and after the panchayat, PW1 went to the house of A1. But again she was subjected to cruelty by way of demanding of dowry. PW1 and PW2 have categorically stated that after three year of marriage of PW1 with A1, all the accused demanded dowry. Then PW1 has not chosen to give complaint as against the accused immediately. No explanation was given on the side of the prosecution, why PW1 has not given any complaint against all the accused, when they demanded dowry three years after the marriage of PW1 with A1. To prove the demand of dowry and the conduct of panchayat, PW3 to PW5 were examined. PW3 and PW4 are the Uncles of PW1. PW3 deposed that he came to understand the demand of dowry by the accused only through his wife. But the wife of PW3 was not examined in this case. Further, http://www.judis.nic.in 7 PW3 stated during his evidence that after he returned from Malaysia, panchayat conducted and the accused persons had not obeyed the decision taken by the panchayatars and then PW1 gave complaint before Maravar Sangam and since no action was taken by Maravar Sangam, then PW1 gave Ex.P1 complaint to the police. It is to be noted here that PW3 has no direct knowledge about the dowry alleged to be given at the time of marriage between PW1 and A1, since at that time he was in Malaysia.
10.PW3 during his chief examination stated that panchayat was conducted, but the accused persons had not obeyed the decision taken by the panchayatars. But during his cross examination, he has stated as follows:-
“ehd; KJFsj;J}h; kwth; rq;fj;jpy;
gQ;rhaj;J itj;njhk; vd;why; rhpjhd.;
mjpy; vq;fs; jug;gpy; ahUk; te;J
bfhs;stpy;iy. ahh; ahh; ngrp ifbaGj;J
nghl;Ls;sdh; vd;why;. btspa{h;fhuh;fs;
nghl;ldh.; gj;jpuj;jpy; ahh; ifbaGj;J
nghl;Ls;sdh; vd;why; bjhpahJ. gj;jpuj;jpy;
ifbaGj;J thq;fpndhk; vd;W fhz;gpj;jdh.;
ahh; nghl;ldh; vd;gJ bjhpahJ.
11.On careful perusal of the above cross examination, it reveals that either PW3 or PW1 participated in the panchayat. Hence, the http://www.judis.nic.in 8 evidence of PW3 stating that he participated in the panchayat and the A1 has not obeyed the decision taken in the panchayat is not at all acceptable. PW4 deposed that at the time of marriage, PW1 was given 12 sovereigns of jewels and and afterwards, he heard that all the accused demanded dowry and drove PW1 from the matrimonial home and then, panchayat was conduct. But PW1 and A1 separated and then PW1 gave complaint to the police. As per the version of PW4, he only heard that all the accused demanded dowry and PW1 was subjected her to cruelty. PW1 to PW3 stated that after the panchayat, PW1 and A1 re-unioned. But PW4 stated during his evidence that after panchayat, PW1 and A1 had not re-unioned. Hence, there are lot of contradictions in the evidence of PW1 to PW3 and PW4.
12.PW5 and PW6 are cited as witnesses to speak about the demand of dowry by the accused. But PW5 and PW6 turned hostile and they did not support the case of the prosecution. PW7 to PW11 are cited as witnesses to speak about the panchayat conducted by the elders of the village in respect of demand of dowry by the accused. PW7, PW9 and PW11 turned hostile and they did not support the case of the prosecution. PW8 deposed that due to dispute between PW1 and A1, he conducted panchayat. PW8 has not spoken in respect of demand of dowry by the accused from PW1, but he conducted the panchayat. No document was filed on the side of the prosecution to http://www.judis.nic.in 9 prove the conduct of panchayat. PW8 in his chief examination stated that he participated in the panchayat. But during his cross examination, he has stated as follows:-
“gQ;rhaj;J bra;njhk;. vJt[k; vGjp thq;ftpy;iy. gQ;rhaj;J bra;j njjp tUlk; bjhpatpy;iy. mth;fSf;Fs; ,Ue;J rpd;d rpd;d gpur;rpidf;fhf gQ;rhaj;J bra;njhk;. gQ;rhaj;jpy; epj;ahde;jk;> uhkrhkp> fe;jrhkp vd; jiyikapy;
gQ;rhaj;J elf;ftpy;iy.”
13.PW8 has not stated during his cross examination that only small dispute between PW1 and A1 and for that only, panchayat was conducted. PW8 has not stated that for demand of dowry by the accused, panchayat was conducted. Hence, PW8 evidence will not help to the case of the prosecution. PW10 deposed that panchayat was conducted for the family dispute between PW1 and A1. PW10 has not stated that in respect of demand of dowry by the accused, panchayat was conducted. Hence, the evidence of PW10 also not supported the case of the prosecution.
14.PW1 and PW2 stated that after panchayat, PW1 and A1 got reunion. But PW4 stated that after panchayat, PW1 and A1 were not re-unioned. There are contradictions in the evidence in respect of http://www.judis.nic.in 10 reunion of PW1 and A1 after panchayat. To prove the panchayat and the decision taken in the panchayat, no document was filed on the side of the prosecution. There are contradictions in the evidence of the witnesses in respect of panchayat conducted between A1 and PW1. PW8 and PW10 categorically stated that panchayat was conducted for the family dispute between PW1 and A1. Hence, on careful perusal of the evidence of PW8 and PW10, it reveals that after 2003, PW1 never went to the matrimonial home. PW1 has not given any complaint to the police immediately. But she gave the complaint only in the year 2006. No proper explanation was given on the side of the prosecution for the delay in giving the complaint to the police. Further, PW1 has not sent any notice to A1 calling upon him for reunion. Further, PW1 either in her complaint or her evidence has not stated specifically the date of occurrence. No document was filed on the side of the prosecution to prove that due to cruelty by the accused, PW1 sustained injuries. Hence, the evidence of PW1 stating that she was subjected to cruelty by the accused is not at all acceptable.
15.The learned counsel appearing for the petitioners/A1 to A4 argued that the prosecution has not proved the cruelty or demand of dowry and in this case, no evidence was produced to prove that all the accused demanded dowry from PW1 and hence, all the accused are http://www.judis.nic.in 11 entitled to acquittal. For that, he relied upon the decision reported in 2005(1)T.N.L.R 53 (SC) (State of Rajasthan Vs. Teg Bahadur and others).
16.Further, the learned counsel appearing for the petitioners/A1 to A4 submitted that the prosecution has not proved that mental or physical torture should be continuously practised by the accused on the victim. For that, the learned counsel relied upon the decision reported in (2009)13 SCC 330 (Manju Ram Kalita Vs. State of Assam), wherein it was held in para 17 to 21 as follows:-
“17.In Mohd. Hoshan V. State of A.P (2002)7 SCC 414 : 2002 SCC (Cri) 1765, this Court while dealing with the similar issue held that mental or physical torture should be continuously practised by the accused on the wife.
The Court further observed as under:
“6.Whether one spouse has been guilty of cruelty to the other is essentially a question of act. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education, etc. Further, mental cruelty varies from person to person depending on http://www.judis.nic.in 12 the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
18.In Raj Rani V. State (Delhi Admn.) [(2000)10 SCC 662], this Court held that while considering the case of cruelty in the context of the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
19.In Sushil Kumar Sharma V. Union of India (2005)6 SCC 281, this Court explained the distinction of cruelty as provided under Sections 306 and 498-A IPC observing that under Section 498-A cruelty committed by the husband or his relation drives the woman to commit suicide, etc. while under Section 306 IPC, suicide is abated (sic abetted) and intended. Therefore, there is a basis difference of the intention in application of the said provisions.
20.In Girdhar Shankar Tawade V. State of Maharashtra (2002)5 SCC 177, this Court held that “cruelty”has to be understood having a specific statutory meaning provided in Section 498-A IPC and there should be a case of continuos state of affairs of torture by one to another.
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21.”Cruelty” for the purpose of Section 498- A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
17.In this case, it is decided that after 2003, PW3 was in her parental house and she gave Ex.P1 complaint only in the year 2006. Hence, there is no mental or physical torture by the accused towards PW1. Therefore, it is held that there is no evidence for continuous torture by the accused towards PW1. Hence, the offence under section 498(A) IPC is not made out. Further, in order to prove the demand of dowry after the marriage, no proper evidence was let in on the side of the prosecution. Hence, the offence under section 498(A) IPC is also not made out against the accused persons. http://www.judis.nic.in 14
18.For all the reasons stated above, this court is of the considered view that both the courts below without proper appreciation of the entire materials on record, both oral and documentary have given erroneous findings, which requires interference of this court.
19.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The petitioners/A1 to A4 are acquitted of the charge(s) levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them.
10.06.2020 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 15 To,
1.The Additional District and Sessions Judge, Ramanathapuram.
2.The Judicial Magistrate, Mudukulathur.
3.The Additional Public Prosector, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 16 T.KRISHNAVALLI,J er Judgement made in Crl.R.C(MD)No.209 of 2015 10.06.2020 http://www.judis.nic.in 17 http://www.judis.nic.in