P.Gandhimathi @ Akila v. M.Subramaniam & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.310 of 2006andM.P.No.1 of 2006P.Gandhimathi @ Akila ..Petitioner/ Complainant (P.W.1)vs.1.M.Subramaniam2.Nagammal3.Murugavel4.Nisha5.Y.Kavitha ..Respondents/Accused6.The Inspector of Police, 1 to 5 2 to 6 All Women Police Station, and Respondent 6/ Erode. Complainant (Cr.No.4/03) Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 7.12.2005, passed by the Judicial Magiastrate, No.1,Erode, in C.C.No.7 of 2004.For Petitioner : Mr.N.ManokaranFor Respondent : Mr.S.Ashok Kumar,Sr.counsel for C.D.Johnson for R1 to R4 Mr.I.C.Vasudevan for R5 Mr.Hasan Md.Jinnah,A.P.P. O R D E R Animadverting upon the order dated 7.12.2005, passed by theJudicial Magiastrate, No.1, Erode, in C.C.No.7 of 2004, thiscriminal revision case is focussed.2. 'A' resume of facts, which are absolutely necessary andgermane for the disposal of this civil revision petition would runthus: https://hcservices.ecourts.gov.in/hcservices/ (a) The police, in terms of Section 173 Cr.P.C. filed the policereport as against six accused, namely, 1. S.Krishnamurthy,2.M.Subramaniam, 3.Nagammal, 4.Murugavel, 5.Nisha, 6.Y.Kavitha. Theaccused pleaded not guilty. Whereupon, the trial was conducted beforethe Magistrate. (b) During enquiry, on the prosecution side, the complainant/therevision petitioner was examined as P.W.1 along with 18 others andExs.P1 to P5 were marked. No oral or documentary evidence was adducedon the side of accused.(c) Ultimately, the trial Court convicted A1 for the offencesunder Section 498-A IPC and Section 4(1) of the Dowry Prohibition Actand acquitted A1 of the offence under Section 323 IPC. TheMagistrate also acquitted A2 to A6 of all the offences with whichthey were charged. It appears, A1 preferred criminal appealquestioning and challenging the conviction and sentence imposed asagainst him, which is pending. Whereas, the de-facto complainantP.W.1-Gandhimathi preferred this revision challenging and impugningthe acquittal of A2 to A6 of all the offences with which they werecharged on various grounds, the pith and marrow, the gist and kernalof them would run thus:The judgement of the lower Court is not in accordancewith law, as the Magistrate has chosen to simply remark asthough no satisfactory evidence was adduced by theprosecution as against A2 to A6-the respondents herein andacquitted them. Despite clinching evidence available asagainst A2 to A6 also, no conviction was recorded and nosentence was imposed by the Magistrate. The lower Courtalso has not considered the purport of Section 8(b) of theDowry Prohibition Act, which cast the burden on the accusedand not on the prosecution. Even though there is nothing toindicate and exemplify that the case of the prosecution wasfalse as against A2 to A6, nonetheless, the Magistratedeveloped some doubt about the prosecution case andacquitted A2 to A6. Simply based on the proposition thatbenefit of doubt has to be given to the accused, leniencycannot be shown towards the accused, and thereby deprive therevision petitioner of her genuine right to secureconviction as against A2 to A6. Even in response to thequestions put to A2 to A6 during Sec.313 examination, noeffective answers were given by them to evince theirinnocence. Minor lapses on the part of the investigatingagency or prosecution cannot be taken as material by thelearned Magistrate. Accordingly, the revision petitionerprayed for setting aside the order of the lower Court inacquitting A2 to A6 and pass suitable direction in thisregard. https://hcservices.ecourts.gov.in/hcservices/

3. Heard both sides.4. The point for consideration is as to whether the finding ofthe lower Court to the effect that prosecution has not adducedclinching evidence to prove the guilt of A2 to A6 in respect of theoffence with which they were charged, is perverse or due to wrongappreciation or non appreciation of evidence placed before the Court.5. The learned counsel for the revision petitioner would setforth and put forth his arguments to the effect that P.W.1 being thevictim of the crimes perpetrated by A1 to A6, detailed andchallenged, narrated and described the occurrence; nonetheless theMagistrate simply observed as though there was no evidence as againstA2 to A6; P.Ws.2 and 3 even though happened to be the parents, theywere not eyewitnesses to all the atrocities and cruelties perpetratedby the accused as against P.W.1 and in such a case merely becausethose witnesses P.W.2 and P.W.3 did not speak about the overt act ofA2 to A6 specifically, the lower Court was not justified in drawingadverse inference as against the prosecution; in commensurate withSection 353 and 354 Cr.P.C., the Magistrate had not rendered thejudgement in acquitting A2 to A6 and accordingly he prayed forreversal of such acquittal.6. Whereas, the learned Senior counsel for the respondents 1 to5/A2 to A6 would, by way of pulverising and torpedoing the arguementsas set forth and put forth by the learned counsel for the revisionpetitioner, would advance and develop his arguments to the effectthat this Court, while exercising its revisional power cannot simplyfor the purpose of the petitioner having prayed for setting aside theorder of acquittal, re-appreciate the evidence and arrive at adifferent conclusion, unless there is perversity or non-applicationof mind on the part of the Magistrate; the Magistrate, in fact, inparagraphs 17 and 18 of the judgements elaborately analysed theevidence and arrived at the conclusion that the prosecution has notproved the case as against A2 to A6; the Magistrate relying upon theevidence of the Police officers, clearly culled out that among thespate of complaints lodged by P.W.1 as against A1-her husband, shehas not chosen to implicate the other accused herein and such anapproach on the part of the Magistrate cannot be found fault with andaccordingly no interference with the order of acquittal is warranted.7. At this juncture, my mind is reminiscent and redolent of thefollowing decision of the following Apex Court:(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "13. The instant case is not one where any such illegality wascommitted by the trial court. In the absence of any legalinfirmity either in the procedure or in the conduct of thetrial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance of theinformant. It may be that the High Court on appreciation ofthe evidence on record may reach a conclusion different fromthat of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment of thetrial court in the instant case was perverse. No defect ofprocedure has been pointed out. There was also no improperacceptance or rejection of evidence nor was there any defectof procedure or illegality in the conduct of the trialvitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee andOthers vs. State of W.B.and others, an excerpt from it would run thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the High Courtfinds defect of procedure or manifest error of law resultingin flagrant miscarriage of justice."8. The aforesaid judgement would clearly highlight and displaythat if two views are possible, the view one in favour of the accusedshould be allowed to subsist and no interference by the higher forumis warranted. Here, it has to be seen as to whether the Magistratesimply ignored the alleged clinching evidence adduced on theprosecution side as against A2 to A6 and acquitted them. Inparagraphs 17 and 18 of the judgement of the lower Court, theMagistrate considered the deposition of P.W.17-the Police officerconcerned and ascertained that in the various complaints lodged byP.W.1, there was no accusation as against A2 to A6 to the effect thatthey demanded dowry. It would not be out of place to mention thatthe police laid the police report without invoking the Sections 34 or149 or 120(b) or 109 IPC and these are all enabling provisions torope in the abettors and conspirators. The Magistrate also framedcharges as against the accused, without invoking those aiding https://hcservices.ecourts.gov.in/hcservices/ provisions. Hence, it is axiomatic and obvious that prosecution wasduty bound to prove as against A2 to A6 independently the substantiveoffences under Section 498-A IPC and Section 4(1) of the DowryProhibition Act. In other words, there should be clinching evidenceto prove that each of the accused A2 to A6 independently inflictedspecific cruelty as against P.W.1 and each of A2 to A6 demandeddowry. Even though P.W.1, as pointed out by the learned counsel forthe revision petitioner, in several places in her deposition deposedthat along with A1, the other accused A2 to A6 came to thematrimonial home, where A1 and P.W.1 lived and demanded dowry,nonetheless, precisely, with reference to dates, there is no versionto that effect and even in previous complaints, there is no suchreference also as correctly pointed out by the lower Court.9. In this factual matrix, What I could understand is that aftermarriage, which took place on 22.4.1999, for four months, the couplelived along with A2 to A6 in the house at Door No.25/26,Radhakrishnan Street, Periyavalasu, Erode and thereafter, A1 andP.W.1 started living separately. It is also in evidence that A4, A5and A6 lived in a separate house, no doubt within a vicinity of 2Kms. all lived. 10. To the risk of repetition, without being tautalogous, Iwould like to point out that the case of the prosecution is not thatthere was a conspiracy among A1 to A6 and in pursuance of thatconspiracy A1 or some of the accused indulged in perpetrating crueltyas contemplated under Section 498-A and also indulged in demandingdowry as contemplated under Section 4(1) of the Dowry ProhibitionAct. There is also no evidence to show that there is anyconspiratorial approach on the part of A1 to A6 in perpetrating crimeon P.W.1. No doubt, the evidence of P.W.1, as pointed out by thelearned counsel for the revision petitioner, cannot be brushed asideas though it is fraught with falsity and inconsistency. She wouldnarrate that within a period of 15 days, her husband's sister died,whereupon, her husband and family members cast a black look at P.W.1and even started describing or labelling her as an unfortunate brideentered their house. The question arises as to whether such sort ofsocial attitude on the part of A2 to A6 could be taken as oneattracting Section 498-A IPC. I am of the considered opinion thatthe bickerings and dickerings of social life cannot be allowed tobe magnified as an offence, under Section 498-A IPC. It is doubtfulif such ordinary blame worthy behaviours and bickerings anddickerings are allowed to be governed by Section 498-A, the entiresociety will be at risk. No doubt, we could see that P.W.1 was nottaken into the fold of the husband's family, for which P.W.1attributes dowry as the motive. But that is a big pill to swallowand only with a pinch of salt her version could be taken, and thattoo, in the wake of her silence as against A2 to A6 in variouscomplaints filed by her, as correctly highlighted by the lower Courtin its judgement in paragraphs 17 and 18. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel for the revision petitioner would pointout that independent witnesses, other than relatives cannot beexpected in cases of this nature. No doubt, only relatives and thenear and dear would be able to speak about the rift in thematrimonial life of the couple and not strangers, but there should beclear and believable evidence to that effect. Here even P.W.2 andP.W.3-the parents, as observed by the lower Court have not spokenanything about the actual perpetration of cruelty by A2 to A6asagainst P.W.1 and also about their alleged act of demanding dowryfrom P.W.1. That fact has been narrated by the lower Court andcommented upon, adversely as against the prosecution case, warrantingno interference by this Court.12. The lower Court also correctly in paragraph No.18 of itsjudgement observed that even though in the earlier FIR registeredunder Section 323 IPC the charge-sheet was laid as against A1 and A2and they were acquitted of the charge, P.W.1, ignoring suchacquittal, had chosen to include the said offence under Section 323IPC also while lodging the present FIR in All Women Police Station. Iam of the opinion that this Court, if intends to remit the matterback to the lower Court, there should be evidence available, whichshould ex facie and prima facie capable of fastening A2 to A6liability with criminal liability. As has been correctly pointed outby the learned Senior counsel for A2 to A6, once the lower Courtdeveloped doubt about the prosecution evidence as against A2 to A6and given the benefit of doubt on the ground that the guilt was notdriven home as against A2 to A6, this Court may not interfere withit. I would like to agree with the learned Senior counsel for A2 toA6 that in view of the reasoned decision taken by the lower Court inacquitting A2 to A6, this Court, while exercising the revisionalpower need not interfere with it and accordingly, I could see nomerit in the revision and the same is dismissed.13. It is also in evidence, as per P.W.1, that at the time ofmarriage 20 sovereigns of gold jewels and Rs.15,000/- worth articleswere given as 'sridhana', on the request emanated from thebridegroom's side, and there is nothing to indicate and demonstratethat A2 to A6, at that time itself were avaricious enough indemanding dowry over and above what they demanded as 20 sovereigns ofjewels and Rs.15,000/- worth articles. The lower Court also feltthat the case of P.W.1 that A2 to A6 demanded 10 sovereigns of goldjewels and Rs.2,00,000/- additionally as dowry, was not proved inview of lack of evidence and as such, I could see no infirmity in theanalysis of evidence made by the lower Court. 14. The learned counsel for the revision petitioner would make arequest that the discussions made in dismissing this revision may nothave any bearing on the appeal pending before the appellate Court. https://hcservices.ecourts.gov.in/hcservices/

15. It is quite obvious and axiomatic that the appellate Judge,before whom the Criminal appeal filed by A1 is pending, is expectedto dispose of the matter untrammelled and uninfluenced by any of theobservations made by this Court in dismissing this criminal revisioncase.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Judicial Magiastrate, No.1, Erode.2. -do- Through The Chief Judicial Magistrate, Erode.3. The Inspector of Police, All Women Police Station, Erode District.Copy to:The Section Officer,Criminal Section,High Court, Madras.+ 1 c.c. to Mr. N. Manokaran, Advocate. S.R.No.24341.+ 1 c.c. to Mr. C.D. Johnson, Advocate. S.R.No.24740. Crl.R.C.No.310 of 2006MSM (CO)GSK 17.07.2009.