Dhanapackiam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:17.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.19 of 2006Dhanapackiam... Petitioner vs.1.State by Inspector of Police, All Women Police Station, Mettur, Salem Dist.2.Nachimuthu3.Sellayee... Respondents Prayer: Petition filed under Section 397 r/w 401 of Cr.P.C. againstthe judgement dated 8.11.2005, passed by the Judicial MagistrateNo.1, Mettur Dam, in C.C.No.55 of 2003.For Petitioner : Mr.K.SelvakumaraswamiFor Respondents : Mr.Hasan Md.Jinnah for R1 No appearance for R2 and R3 O R D E R Animadverting upon the the judgement dated 8.11.2005, passedby the Judicial Magistrate No.1, Mettur Dam, in C.C.No.55 of 2003,this criminal revision case is focussed.2. A 'resume' of facts, which are absolutely necessary andgermane for the disposal of this criminal revision case would runthus:-The police registered the case in Crime No.1 of 2003 for theoffenes under Section 498-A IPC and Section 4 of Dowry ProhibitionAct as against the accused, at the instance of P.W.1-Dhanapackiam.The learned Magistrate, after hearing both sides, acquitted theaccused. On the Government side no appeal was filed. Being aggrievedby and dis-satisfied with the acquittal of the accused, this revisionis focussed by the de-facto complainant, on various grounds, thegist and kernal of them would thus:-The learned Magistrate acquitted the accused on thesole ground that the witnesses, who spoke in support of theprosecution case, are the victim herself and her parents andother near relatives and that there was no independent https://hcservices.ecourts.gov.in/hcservices/ evidence to buttress and fortify the case of theprosecution.3. Heard both sides.4. The point for consideration is as to whether the approach ofthe learned Magistrate in acquitting the accused on the main groundthat the witnesses are partison witnesses, as they happened to be therelatives of the de-facto complainant, is correct.5. Heard the learned Additional Public Prosecutor also.6. Despite notice served on respondents 2 and 3 no one turned upand represented the matter.7. The learned counsel for the revision petitioner would detailand delineate that in matrimonial matters, the Court cannot expecttotally stranger witness. Only relatives would be in a position tospeak about what happened between the husband and wife and also aboutthe harassment meted out to the wife; wherefore, the approach of thelearned Magistrate in acquitting the accused on the ground that thewitnesses are close relatives, warrants interference by this Court.8. At this juncture, my mind is reminiscent and redolent of thefollowing decision of the Honourable Apex Court:(2009) 2 Supreme Court Cases(Cri) 389 – GURDEV RAJ VS. STATE OFPUJAB, an excerpt from it would run thus:"14. It also cannot be said that since Rajani Bala andPooja were closely related to deceased Bhushan Lata, theirversion could not have been believed. In our opinion, thetrial Court was wholly right in holding that Rajani Balaand Pooja were no doubt relatives of the deceased but theycould not be termed as 'interested' witnesses. The courtwas also right in further stating that close relativeswould be most reluctant to spare the real assailant andwould falsely implicate an innocent person. After seeingthe demeanour of witnesses, the trial Court believed bothof them. The High Court again considered their evidenceand confirmed the finding recorded by the trial Court. Wesee no infirmity in the approach of the trial court as wellas of the High Court. It, therefore, cannot be said thatby believing these two witnesses, any illegality wascommitted by the Courts below."9. It is therefore clear from the Honourable Apex Court'sdecision on relative witness that simply because certain witnessesare related to the victim there is no hard and fast Rule that theirevidence should be discarded. As such throwing to winds, the clearmandate as found enunciated in various decisions set out supra, theMagistrate discarded the evidence of P.Ws.4, 6, 7, 8 and 14. https://hcservices.ecourts.gov.in/hcservices/

10. It is a trite proposition of law that so far defence plea isconcerned, proof beyond reasonable doubts is not required and merepreponderance of probabilities would be sufficient. But on the otherhand, it is the duty of the prosecution to prove the case beyondreasonable doubts. The Magistrate, in paragraph No.20 highlightedthat witnesses P.W.1(victim), P.W.2 and P.W.3-the parents of the de-facto complainant and other witnesses, namely, P.Ws.4, 6, 7, 8 and14, the relatives, spoke about the demand of dowry by thebridegroom's side from the bride's side at time of marriage betweenP.W.1 and A1 on 8.6.1997 and they also further narrated about thetrouble, which erupted in the matrimonial life of P.W.1 and A1.P.W.4 would, without any embellishment, depose to the effect that itwas P.W.4, who participated in the panchayat and ascertained duringpanchayat that P.W.1 was beaten by A1 and that he warned A1 not toindulge in such wife battening or indulge in the recidivism beatingof P.W.1. I am at a loss to understand as to how the learnedMagistrate has lost sight of such evidence. For constituting offenceunder Section 498-A, it is not necessary that infliction of crueltyshould be one based on dowry demand only. Any type of cruelty iscruelty for the purpose of attracting ingredients of Section 498-A ofIPC. P.W.1 being the victim detailed and delineated the crueltymeted out to her. It is also in evidence of the witness that aftermarriage even while P.W.1 was pregnant, she was ill treated by A1.Whereupon alone Panchayat was came to be conducted and in that P.W.4participated and warned A1. After delivery of the first child, onceagain there was trouble, which caused rift and flutter in thematrimonial relationship of them. Then there was resumption ofcohabitation between P.W.1 and A1 and P.W.1 gave birth to anotherchild. Thereafter also bad blood started running in the relationshipof P.W.1 and A1. As such, the evidence available on record wouldapparently exemplify and demonstrate that at intermittent intervals,A1 perpetrated cruelty on P.W.1 and due to that alone P.W.1 and A1are living apart from each other. All these facts have not beenconsidered by the learned Magistrate, but given weightage to the pleaof the accused as though the witnesses are relatives instead ofdiscarding such defence plea as Nihil and rem.11. While observing as above, I cannot lose sight of the factthat regarding the offence under Section 4(1) of the DowryProhibition Act is concerned, the discretion exercised by the learnedMagistrate cannot be interfered with for the simple reason that whentwo views are possible and if the learned Magistrate takes up oneview in favour of the accused, this Court, while exercisingrevisional jurisdiction cannot interfere with it. Even though thereis ample evidence to show that on the marriage day itself there wassome dispute relating to demand of dowry on the bridegroom's sidefrom the bride's parents, yet thereafter, P.W.1 and A1 gave birth totwo children and there had been long lapse of time. As such, thedowry aspect is concerned the discretion exercised by the learnedMagistrate warrants no interference. 12. It is a fact that D2(A2)-the father of A1 died. As far asA3-the mother of A1 is concerned there is nothing to implicate her inthe crime specifically and precisely and as such, the discretion https://hcservices.ecourts.gov.in/hcservices/ exercised by the learned Magistrate on that ground also warrants nointerference. 13. Ultimately, I am of the view that the acquittal of A1 by thelower Court for the offence under Section 498-A alone warrantsinterference, as ex facie and prima facie there is evidence, whichshould have been considered by the learned Magistrate in properperspective in the wake of the precedents. But after narrating thefacts, the learned Magistrate simply jumped to the conclusion asthough the interested testimony of the witnesses should not bebelieved for recording a conviction under Section 498-A IPC,wherefore, such a finding and the consequential acquittal of A1 forthe offence under Section 498-A alone is set aside and the matter isremitted back to the Magistrate, who is expected to deal with thematter au fait with law in the light of the precedents and au courantwith facts within a period of three months from the date of receiptof copy of this order.The criminal revision case is ordered accordingly. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarMskTo1. The Judicial Magistrate No.1, Mettur Dam2. -Do- Thro' The Chief Judicial Magistrate, Salem District.3. The Public Prosecutor, High Court.4. The Section Officer, Criminal Section, High Court, Madras.Crl.R.C.No.19 of 2006VSV {CO}TP/2.7.2009.