M.Vijayakumar v. State rep.byInspector of Police,All Women Police StationVellore

BAIL SLIPThe Petitioner/Accused namely M. Vijayakumar wasdirected to be released on bail as per order of this Courtdated 30.07.2003 in CRL MP NO. 7075/03IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.1138 OF 2003M.Vijayakumar.. Petitioner/Accused-vs-State rep.byInspector of Police,All Women Police StationVellore. .. Respondent /ComplainantThis Revision is filed against the Judgment of thelearned Additional District and Sessions Judge( Fast TrackCourt ) Vellore in C.A.No.39 of 2001 dated 30.6.2003against the order passed in C.C.No.86 of 1999 on the fileof the Judicial Magistrate No.5,Vellore.For petitioner :: Mr.K.Ashokan,Senior Counsel for Mr.N.BaskaranFor respondent :: Mr.V.R.Balsubramanian Addl. Public ProsecutorO R D E RThis revision has been preferred against the Judgmentin C.A. No.39 of 2001 on the file of the AdditionalDistrict and Sessions Judge(Fast Track Court), Vellore . Onthe basis of the complaint preferred by the wifeViolasingh, All Women Police, Vellore have registered acase in Cr.No.8 of 1999 under Section 498 A of IPC andunder Section 4 of Dowry Prohibition Act. 2. The case was taken on file by the learned JudicialMagistrate No.5, Vellore in C.C.No.86 of 1999 and on https://hcservices.ecourts.gov.in/hcservices/ appearance of the accused on summons, copies under Section207 Cr.P.C were furnished to the accused and when chargeswere framed under Section 498A of IPC and under Section 4of Dowry Prohibition Act and questioned the accusedpleaded not guilty. 3) On the side of the prosecution P.Ws 1 to 11 wereexamined. Exs P1 to P3 were exhibited. 4) P.W.1 is the complainant. According to her, themarriage between her and the accused was solemnised on4.12.1997 as per the christian custom and that she and herhusband lived along with the accused and his foster motherA2. The matrimonial life went on happily only for threemonths. P.W.1 would allege that even in three months, shehad on many occasions noticed that A1 and A2 behaveddishearteningly and that A2 had developed aversion towardsA1 and the complainant and she was not even allowed A1 andthe complainant to take coffee together and in February1998 one Suganya who came to participate in the familyprayer indicated a room in which she saw A1 and A2 in acompromising posture . She would further complain that A1used to ask her to take sleeping pills very often and alsoA1 and A2 used to confine her in a room for nearly threedays and during that period she has been provided only withfood and on 30.3.1998 at about 6.00p.m., A1 and A2 went tothe upstairs for the purpose of washing their clothes andat about 8.oop.m.,. A2 alone came down to the down stairshanded over the bed sheet asking her(complainant P.W.1) tohand over the same to A1 in the upstairs and A1 afterdipping the bed sheet in a bucketfull of water lifted herand made an attempt to throw her from the upstairs to theground. Fortunately she caught hold of the parapet walland escaped from the attempt and thereafter immediately sheleft the matrimonial house and began to live with herparents. At that time, her father had gone to Kerala inconnection with his business and after his return shenarrated what had happened in the in-law's house and withthe help of the elders, there was a mediation took place.But A1 and A2 never came for an amicable settlement and on2.5.1999 somebody brought her house hold articles andstrewn in front of her house on the street. Thereafter shepreferred a complaint with All Women Police Station., Ex P2is the complaint preferred by her.4a) P.W.2 is the mother of P.W.1.P.W.2 would deposesome of the facts which were not even spoken to by P.W.1or narrated in her complaint Ex P2. According to P.W.2,P.W1 has complained that A2 had insisted A1 to have sexualintercourse with the complainant even during her menstrual https://hcservices.ecourts.gov.in/hcservices/ period. Further she would allege that A2 had insisted P.W1to bring a computer from her parents house . In otheraspects, she would corroborate the evidence of P.W.1.4b)P.W.3 is the father of P.W.1. He would depose thatby spending Rs.50,000/- he had celebrated the marriage ofhis daughter with A1. He would accuse A2 that he neverallowed him to talk with his daughter even over telephone.After his daughter P.W1 left the matrionial home, he madean attempt to meet A1 and A2 to settle the issue amicablybetween P.W.1 and A1. Since it cannot be fructified, P.W.1had preferred a complaint on 3.5.1999 with All WomenPolice, Vellore.4c)P.W.4 is the retired teacher who knows both thecomplainant's family and the accused for nearly 17 yearsand he has also attended the marriage of P.W.1 with A1which was solemnised on 4.12.1997. He would depose thatwhen he visited the house of P.Ws 2 and 3 at 10.00 a.m., on3.5.1999, he saw the house hold articles like cot, bureauand other utensils were found strewn in front of theirhouse. When he enquired about this with P.W2 and 3, theyinformed him that at about 12.00 in the previous nightsomebody had left those articles in front of their house.P.Ws 2 and 3 have informed him that they were trying tomediate between P.W.1 and A1 for an amicable settlement butthey could not succeed in their attempt.4d) P.W.5 is the sister of P.W.3 and aunt of P.W.1.According to her, she had invited both A1 and P.W.1 for adinner on the eve of Christmas in the year 1997. But bothA1 and his wife(P.W.1) did not turn up. When this wasenquired with A1 and A2, they have not given proper replyand would state that she if so desires, can prefer acomplaint against them with the police and at that time,some rowdy elements were also present in the house of A1and A2 and when the rowdy elements interferred with,during the conversion, she heard with A1 and A2, she warnedthem not to interfere with their family affairs. She wouldfurther depose that P.W1 had complained on many times thatA1 and A2 never allowed her to use the telephone and alsocompelled her to consume sleeping pills and A2 hadcompelled P.W.1 to have sexual intercourse with A1 duringher menstrual period.4e) P.W.6 is a neighbour of P.W.2. According toP.W.6, P.W.3 the mother of P.W.1 had informed him that A1and A2 have prevented P.W.1 from contacting her parentsviz. P.W.2 and P.W.3 even over phone. He is not an eye https://hcservices.ecourts.gov.in/hcservices/ witness to the occurrence.4f)P.W.7 is the retired nursing Superintendent who hadattended the marriage of P.W.1 with A1. He would say thatboth a1 and P.W.1 were living separately nearly for 1 ½years. According to P.W.7, A1 is the foster son of A2 andboth P.W.1, A1 and A2 were lived together under the sameroof . Thereafter he has failed to support the case of theprosecution. Hence he was treated as a hostile witness.4g) P.Ws 8,9, and 10 have also not supported the caseof the prosecution and hence they were treated as hostilewitnesses by the Additional Public Prosecutor.4h) P.W.11 is the Investigating Officer. She hadregistered the case on the basis of the complaintpreferred by P.W.1 on 7.6.1999 at 2.00p.m.,. She hadarrested A1 and A2 and produced before the JudicialMagistrate for Judicial remand. She had examined witnessesand recorded their statements and after completing theformalities, she has filed the chargesheet against theaccused on 9.7.1999.6. When incriminating circumstances were put to theaccused, the accused would totally deny heir complicitywith the crime.7.After going through the oral and documentaryevidence, the learned Judicial Magistrate has convictedand sentenced A1 under Section498 A IPC to undergo one yearrigorous imprisonment and a fine of Rs.1000/- with defaultsentence and also convicted under Section 4 of DowryProhibition Act to undergo one year Rigorous imprisonmentand a fine of Rs.1,000/- with default sentence and thelearned trial Judge has acquitted A2 from all the chargeslevelled against her. The learned trial Judge has furtherdirected that A1 shall suffer the sentence concurrently.Aggrieved by the findings of the learned trial Judge, A1had preferred an appeal in C.A.No.39 of 2001 before thelearned Additional District and Sessions Judge(FTC)Vellore. After due deliberation to the submissions made bythe learned counsel for the appellant and the learnedAdditional Public Prosoecutor for the State. The learnedSessions Judge has partly allowed the appeal therebyconfirming the conviction and sentence against A1 underSection 498 A of IPC and allowing the appeal against theconviction and sentence imposed by the trial Judge underSection 4 of the Dowry Prohibition Act which necessitatedthe A1 to prefer this revision. https://hcservices.ecourts.gov.in/hcservices/

8. Now the point for determination in this revision iswhether the conviction and sentence imposed by the learnedtrial Court against A1 under Section498 A which wasconfirmed by the first appellate Court in C.A.No.39 of 2001is liable to be set aside for the reasons stated in thememorandum of revision.?9. Heard Mr. K.Ashokan, learned Senior Counsel for therevision petitioner, Mr.V.R.Balsubramanian, learnedAdditional Public Prosecutor appearing for the State-R1 andconsidered their rival submissions.10.The Point:The learned Senior Counsel would attract the attention ofthis Court to the circumstances spoken to by the witnessesP.Ws 1 to 6 which are not corroborative in nature. Thelearned Senior Counsel will bring to the notice of thisCourt that even though P.W.1 would state that she had seenboth A1 and A2 in a compromising posture in March 1998.According to her she had left the matrimonial house on thevery same date but had preferred the complaint only on7.6.1999. The explanation for the delay in preferring thecomplaint according to the prosecution witness is that thehouse hold articles like cot and bureau and other utensilshave been found strewn in front of her parents house in themid night of 2.5.1999 and thereafter only P.W.1 hadpreferred a complaint on 7.6.1999. 11. The learned Additional Public Prosecutor relying onState by Inspector of Police, Anti Dowry Cell etc.,v.Sivasubramaniam(1999 2 L.W.862) and contended that in thematrimonial cases, the delay in preferring the complaint isnot fatal to the case of the prosecution. The short factsof the above said ratio is that the accused who is thehusband was prosecuted under Section 498A of IPC and alsounder Section 4 of the Dowry Prohibition Act. The crueltyalleged against the husband was that even two or threemonths after the marriage, the accused/husband had causedburn injuries on the right knee of his wife with an ironbox. The said occurrence had taken place on 28.11.1989,the marriage between P.W.1 and the accused was solemnisedon 23.6.1989. The complaint was preferred by P.W.1 on17.2.1990. ie., about three months from the date ofoccurrence. It is pertinent to note in the facts of theabove mentioned case that P.W.1 the wife was all alongliving with the accused/husband tolerating the cruelty https://hcservices.ecourts.gov.in/hcservices/ received at the hands of her husband/accused till shepreferred a complaint with the police three monthsthereafter. But that is not the case on hand, herein.According to P.W.1, she had left the matrimonial home on30.3.1998 but she had preferred a complaint only on7.6.1999. Even according to P.W.1, P.W.2, and P.W.3 thehousehold articles were found strewn in front of theirhouse in the mid night of 2.5.1999 and that theprosecution witnesses are not able to identify who hadstrewn those household articles in front of their house onthe mid night of 2.5.1999. There is no explanationforthcoming from P.W1 why P.W.1 has not preferred acomplaint with the police soon after 2.5.1999 and why shewaited for another month thereafter from 2.5.1999 to preferthe complaint with the police. P.Ws 2,3 and 4 in theirevidence would refer to some of the facts which are noteven spoken to by P.W.1 in her evidence. The allegationthat A2 had compelled A1 to have cohabitation with P.W.1during her menstrual period was not even spoken to by P.W.1or alleged in Ex P2 complaint. So I am of the opinion thatinordinate delay in preferring the complaint against A1 byP.W.1 is fatal to the case of the prosecution. 12. The suggestion put in the cross examination of P.W1 isthat she had eloped with one Paul on 30.3.1998 and left thematrimonial home on 30.3.1998. With regard to theallegation of cruelty, the learned Additional PublicProsecutor relying on the ratio decidendi in State of WestBengal -vs- Orilal Jaiswal and another(1994 Supreme CourtCases (cri) 107) and contended that as per the definitionunder Section 498 A IPC, "cruelty" means any wilful conductwhich is of such a nature as is likely to drive the womanto commit suicide or to cause grave injury or danger tolife, limb or health (whether mental or physical) of thewoman and in the said decision, the mother in law of thedeceased always telling her that she was a woman of evilluck and had swallowed her baby and had preferred her totake an extreme step of committing suicide and on facts,the deceased was subjected to abuses, humiliation at thehands of her husband, will come squarely under thedefinition of Section 498 A of IPC and that, the facts inthe above said dictum will also applicable to the presentfacts of the case on hand except that P.W.1 has notcommitted suicide. https://hcservices.ecourts.gov.in/hcservices/

13. The learned Additional Public Prosecutor would attract the attention of this Court to the evidenceof P.W.1 to the effect that she had seen both A1 and A2 ina compromising posture on 30.3.1998 . It is relevant to benoted at this juncture that P.W1 has filed a petition fordivorce before the Principal District Court, Vellore inIDOP.No.11 of 1999 alleging the same ground. After goingthrough the evidence, it has been held by the learnedPrincipal District Judge that adultery coupled withcruelty was not proved and since the respondent is also notwilling to live with the petitioner Violasingh, the learnedPrincipal District Judge has granted divorce which wilamount to a consent divorce. Except the Ipsi Dixit ofP.W.1, there is absolutely no evidence on record to showthat A1 and A2 were living in Adultery . So the above saiddictum will not be applicable to the present facts of thecase.14. As I have already observed in the earlierparagraphs that non explanation of long delay of one yearthree months from the date of 30.3.1998, on which date P.W1had admittedly left the matrimonial home, to prefer acomplaint on 7.6.1999 is unexplained which in my opinionis fatal to the case of the prosecution. The point isanswered accordingly.15. In the result, the revision is allowed andconviction and sentence against A1 under Section 498 A ofIPC by the learned Additional District and Sessions Judge,(Fast Track Court) Vellore in C.A.No.39 of 2001 is setaside and A1 is set at liberty forthwith. The fine amount,if any paid to be refunded to the revision petitioner. Thebail bond executed by the accused shall stand cancelled.SgSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge(FTC ) Vellore.2. The Judicial Magistrate NO.5,Vellore3.-do- through the Chief Judicial Magistrate, Vellore4. The Public Prosecutor, High Court, Madras5. The Inspector of Police, All Women Police Station, Vellore.6. The Superintendent of Central Prison Vellore+ one cc to Mr. N. Baskaran, Advocate sr no. 25166nsm(co)nm(25.04.07)Crl.R.C.No.1138/2003