Palaniammal v. Pachaiappan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.02.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1460 of 2002Palaniammal... AppellantVs.1. Pachaiappan2. Muniammal3. Munian4. Kuppan5. Jadayan6. Military Annamalai...RespondentsThis Criminal Appeal has been filed under Section 378(4) ofthe Criminal Procedure Code to set aside the Order of acquittalmade by the learned Judicial Magistrate No.1, Dharmapuri dated15.04.1997 made in C.C.No.120/92.For Appellant: Mr.J.SaravanavelFor Respondents: Mr.M.Selvam JUDGMENTThis Criminal Appeal filed under Section 378 of CriminalProcedure Code with the leave of the court is directed againstthe judgment and order of acquittal dated 15.04.1997 made by thelearned Judicial Magistrate No.1, Dharmapuri in C.C.No.120/1992on the file of the trial court acquitting the first and secondrespondents herein/Accused 1 and 2 in respect of an offencepunishable under Section 494 IPC and acquitting the respondents3 to 6 herein/Accused No.3 to 6 in respect of an offencepunishable under Section 494 read with Section 109 IPC for whichthey were tried before the trial court.2. The facts leading to the filing of the present appealcan be briefly stated thus:-The appellant Palaniammal is the legally wedded wife of thefirst respondent/first accused - Pachiappan. The 3rd respondentMunian is the father of the second respondent Muniammal. 4threspondent Kuppan and 5th respondent Jadayan are the sons of the https://hcservices.ecourts.gov.in/hcservices/ 3rd respondent and elder brothers of the second respondent. Theappellant and the respondents 1 to 5 are residents of Chekodivillage, Palacode Taluk, Dharmapuri District. The 6th respondentis a resident of Pachampatti Kottai, Dharmapuri District. Out ofthe lawful wedlock, the appellant and the first respondent gottwo sons and one daughter. While so, on 18.09.1992, theappellant herein preferred a private complaint under Section 200on the file of the Judicial Magistrate No.1, Dharmapuri accusingthe first and second respondents of having committed an offenceof bigamy punishable under Sections 494 IPC and accusingrespondents 3 to 6 for having committed an offence of abetmentof commission of the offence of bigamy punishable under Section494 read with Section 109 IPC. 3. According to the averments made in the complaint, thefirst respondent (Accused No.1) had been ill treating theappellant/complainant, as the appellant did not give her consentfor the second marriage of the first respondent/ first accusedas demanded by him. At the end of Tamil month Aani in 1992,when the appellant/complainant came to know that the firstrespondent/first accused was trying to marry the secondrespondent/second accused, she gave a telegraphic notice throughher advocate on 10.07.1992 to the respondents 1 to 5/accused 1to 5. Though the first respondent/first accused received thesaid telegraphic notice, respondents 2 to 5 refused to receivethe same. Under the said circumstances, the firstrespondent/first accused had to postpone his proposed marriagewith the second respondent/second accused. But, as usual hecontinued to harass the appellant and treat her with crueltycoercing her to affix her signature in a document titled asMarriage Release Deed. However, the appellant/ complainantrefused to do so. On 09.09.2002 at about 6.00 AM, therespondents 1 to 6/Accused 1 to 6 had arranged the marriage ofthe first respondent/first accused with the secondrespondent/second accused at Arulmigu Mariamman Temple situatedin between Chekodi village and Pachampatti Kottai village. Onreceipt of the information, the appellant/complainant (PW1)along with her son (PW2) and one Kaliappan (PW3) went to thevenue and protested against the marriage. Despite their protestthe marriage ceremony went on and the first respondent/firstaccused married the second respondent/ second accused by tying a"thali" around her neck. The other accused, namely respondents3 to 6/accused 3 to 6, actively assisted the performance of themarriage between the respondents 1 and 2/accused 1 and 2 byputting the "Atchathai" on them. Within 2 days thereafter, therespondents 1 and 2/accused 1 and 2 came to the matrimonial homein which the appellant and the first respondent had been livingever since their marriage that took place 23 years back andtried to console the appellant stating that she, along withsecond respondent, could live under the same roof as wives ofthe first respondent/first accused. As she declined the saidoffer, she was beaten and driven out. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ appellant/complainant was constrained to prefer the above saidprivate complaint against the respondents 1 to 6/accused 1 to 6praying that they should be prosecuted for the aforementionedoffences and punished suitably.4. The learned Judicial Magistrate No.1, Dharmapuri, onreceipt of the said complaint in writing, recorded the swornstatement of the appellant/complainant, took it on file asC.C.No.120/1992 and issued process to the respondents/accusedunder Section 204 Criminal Procedure Code. On appearance, therespondents/accused were questioned regarding the accusationsmade against them by the appellant/complainant. As they deniedthe allegations, a charge under Section 494 IPC against thefirst and 2nd respondents/first and second accused and a chargeunder Section 394 R/w 109 IPC against the other respondents,namely respondents 3 to 6, were framed. After having thecharges read over and explained, all the respondents/accused 1to 6 pleaded not guilty. Hence they were tried for the abovesaid offences.5. In order to substantiate her case against the accused,the appellant/complainant besides examining herself as PW1,examined her son Periya Paiyan (bghpa igad;) as PW2 and oneKaliappan as PW3. No document was marked and no material objectwas produced. After the completion of the evidence for theprosecution (on the side of the complainant), the respondentsherein/accused were questioned under Section 313(1)(b) regardingthe incriminating parts of the evidence adduced on the side ofthe complainant. They denied them as false and once againreiterated that they were innocent and not guilty. One Perumalwas examined as the sole defence witness DW1. No document wasmarked and no material object was produced on the side of theaccused. 6. After hearing the arguments advanced on either side, thelearned Judicial Magistrate No.1, Dharmapuri considered theevidence and came to the conclusion that none of the chargesframed against the respondents herein/accused was proved beyondreasonable doubt and accordingly acquitted them by judgmentdated 15.04.1997. Aggrieved by and challenging the same, theappellant herein/complainant has preferred this appeal with thespecial leave of the court under Section 378(4) on variousgrounds set out in the Memorandum of appeal.7. Mr.P.V.Bakthavatchalam, learned counsel advancingarguments on behalf of the appellant, contended that thejudgment and order of acquittal of the court below was contraryto law and contrary to the evidence on record; that the failureto believe and rely on the evidence of PW1 to PW3 was perverseand the same resulted in miscarriage of justice; that the courtbelow failed to note that the first respondent/first accusedmarried the second respondent/second accused since the https://hcservices.ecourts.gov.in/hcservices/ appellant/ complainant refused to part with the land purchasedby the first respondent/first accused in her name in favour ofthe first accused; that the court below should have believed thetestimonies of PW1 to PW3 that all the three went to the templeat the time of marriage and despite their protest, the marriageceremony went on and that the court below committed an error indismissing the complaint stating that no independent witness wasexamined to give testimony regarding the performance ofmarriage. Contending further the learned counsel submitted thatthe observation made by the trial court that the failure on thepart of PW1 and PW2 to inform their neighbours of the secondmarriage of the first respondent/first accused with the secondrespondent/ second accused shall be a valid ground to disbelievetheir evidence was not a sound one as the said court did nottake into consideration the fact that the appellant/ complainantfelt shy to inform the neighbours that her husband had married asecond wife after 27 years of married life he had with theappellant/complainant. That the order of acquittal passed bythe learned Judicial Magistrate was unsustainable and that hencethe same should be set aside and the respondents 1 and 2/accused1 and 2 and respondents 3 to 6/accused 3 to 6 should beconvicted and punished for the offences under Section 494 andSection 494 read with Section 109 IPC respectively.8. Per contra, Mr.M.Selvam, learned counsel for therespondents, contended that on an appreciation of evidence thecourt below had rightly come to a conclusion that theappellant/complainant was not able to prove the charges againstthe respondents/accused beyond reasonable doubt and that therewas no scope, whatsoever, to interfere with the same. 9. This court gave its anxious consideration to the rivalsubmissions made by the learned counsel on either side. Thematerials available on record were also perused.10. The complainant who proved to be unsuccessful ingetting her husband and others convicted for alleged offencesunder Section 494 IPC and Section 494 read with Section 109 IPCbased on the allegation that during the subsistence of hermarriage with her husband (first respondent), he married thesecond respondent and the respondents 3 to 6 abetted thecommission of the offence of bigamy by aiding them to getmarried, has brought-forth this appeal after obtaining specialleave from this court under Section 378(4) of Criminal ProcedureCode. 11. It is not in dispute that the appellant/complainant isthe legally wedded wife of the first respondent/first accused;that their marriage took place 27 years prior to the date ofcomplaint and that out of the wedlock they got two sons and onedaughter. It is also not in dispute that the marriage betweenthe appellant and the first respondent still subsists. https://hcservices.ecourts.gov.in/hcservices/ According to the appellant/complainant, during the subsistenceof their marriage, the first respondent/first accused marriedthe second respondent on 09.09.1992 and thus both of themcommitted an offence punishable under Section 494 IPC. Herfurther contention is that respondents 3 to 6 acted in aid ofrespondents 1 and 2 in performing their bigamous marriage andthus they were liable to be prosecuted and punished for anoffence punishable under Section 494 read with Section 109 IPC.12. The defence plea made by the respondents is one oftotal denial of the factum of the alleged second marriage. Whensuch is the case, the prosecutrix, namely theappellant/complainant should have adduced reliable andsufficient evidence to prove the charges against therespondents/accused beyond reasonable doubt. In this case, thecomplainant examined herself as PW1, her son as PW2 and oneKaliappan as PW3. Though she would have stated in her complaintthat prior to the alleged marriage constituting the occurrenceshe issued a telegraphic lawyer's notice, she has not producedeither a copy of the telegraphic notice or a receipt evidencingthe issue of such a telegraphic notice. Nor was any certificateissued by the Postal Department produced to show the service ofsuch a telegraphic notice on the first respondent/first accused.13. The appellant/complainant, in paragraph 3 of hercomplaint, has stated that on receipt of information that themarriage of the first respondent with the second respondent wasgoing to take place on 09.09.1992 at Arulmigu Mariamman Templesituated in between Chekodi Village and Pachampatti Kottaivillage she went there along with witnesses at 6.00 PM on09.09.1992 and saw the respondents 1 and 2 with garlands anddressed like bride and bride groom. According to the avermentsfound in the complaint she received the information that thesaid marriage was going to take place at the said temple andthen only she went to that temple along with the witnesses toprevent the marriage. But the evidences adduced on the side ofthe complainant through PW1 to PW3 are contra to what is foundin the complaint. PW1 in her evidence has stated that on thedate of occurrence itself, the first respondent declared infront of PW1 to PW3 that he was going to marry the secondrespondent and after making such an announcement he took bath,wore a new dhoti and went to the temple. It is her furtherevidence that 30 minutes after his departure from home, shealong with PW2 and PW3 went to the said temple. Evidence of PW2and PW3 also are to the same effect. The learned JudicialMagistrate No.1, Dharmapuri has rightly pointed out the shift inthe stand made by the appellant/complainant during trial betweenthe complaint and evidence as to under what circumstances shealong with PW2 and PW3 went to the place of alleged occurrence.14. Apart from the above said material contradiction, thelearned Judicial Magistrate has also pointed out other https://hcservices.ecourts.gov.in/hcservices/ circumstances which make the evidence of PW1 to PW3unbelievable. According to PW1's evidence when she approachedthe villagers to come along with her to prevent the marriage, noone preferred to respond her call. On the other hand, her ownson PW2 would say that they did not ask any of the villagers toaccompany them. More specifically, he answered during thecross-examination that none of the elders of the village wasinformed and not even the neighbours were informed. Whilegiving an account of the temple, PW1 would say that the templeconsisted of a raised platform and the stone installed thereinas the deity. Her evidence suggests that there was nosuperstructure and a stone alone had been installed on theraised platform as deity. Similar was the evidence of PW2. Onthe other hand, PW3 would state that there was a thatched shedin which two statues had been installed. The said evidence isquite contra to the evidence of PW1. PW3 also asserted thatthere was no building. The said contradictions found in theevidence of PW1 to PW3 were pointed out by the learned JudicialMagistrate in support of his conclusion that they could not havegone to the temple at the time of alleged performance ofmarriage between the first and second respondents/first andsecond accused. PW1 would admit that the said temple was newlycreated temple; that there was no statues in the temple; that ona raised platform three stones had been planted as deities andthat there was no structure put up over the same. She wouldalso state that she was not aware whether there was any poojarito the temple. On the other hand PW2 would say that there was aplatform over which a thatched shed had been put up and a stoneas well as a dagger (nty;) had been planted therein. On theother hand, PW3 would say that there were two statues and adagger behind the stones and that there was also a thatchedshed. In this regard, it is quite obvious that the evidence ofPW1 to PW3 differ from each other which would show that theycould not have gone to the place of alleged occurrence. Atleast, the said discrepancies found in the evidence of PW1 toPW3 will create a serious doubt on their veracity and on theoccurrence alleged by the appellant/complainant. 15. On the other hand, one Perumal appeared as DW1 anddeposed in clear terms that he was the priest (Poojari) ofMariamman Temple situated in between Chekodi village andPachampatti Kottai village; that the said temple consisted of aterraced structure with a measurement of 10' x 10'; that hishouse situated at a distance of 15' from the said temple andthat no marriage used to be performed in the said temple. PW1did not deny that DW1 was the poojari of the temple, butpleaded ignorance regarding the same. All these discrepancieswere pointed out by the learned Judicial Magistrate in supportof his conclusion that the evidence of PW1 to PW3 as if theywitnessed the alleged occurrence, namely the marriage of thefirst and second respondents on 09.09.1992 at 6.00 PM at theabove said Mariamman Temple, could not be believed. https://hcservices.ecourts.gov.in/hcservices/

16. PW2 is none other than the son of PW1, the complainant.Admittedly, PW3 is a close relative of the complainant. Thediscrepancies pointed out by the court below found in theevidence of PW1 to PW3 regarding the circumstances under whichthey went to the place of occurrence and the description of theplace of occurrence (temple), are enough to raise a reasonablesuspicion regarding the version of the prosecution(complainant). Admittedly, there was a dispute between thecomplainant (PW1) and her husband (the first respondent)regarding a property standing in the name of the complainant.PW1 would state that she herself had purchased the property,whereas PW2 would say that the same was settled by the firstrespondent on the complainant (PW1). Let it be as it may, thefact that there is a dispute regarding the ownership of theproperty between the complainant and her husband (firstrespondent) and that the complainant has filed a suit toestablish her title has been admitted. Under thesecircumstances, the court below, properly marshaling theevidence, has arrived at a correct conclusion that thecomplainant has not proved beyond reasonable doubt that thefirst respondent married the second respondent on 09.09.1992 andthus both respondents 1 and 2 committed an offence of bigamypunishable under Section 494 IPC and that the respondents 3 to 6abetted the commission of the said offence by Respondents 1 and2 by aiding them to get married and thus committed an offencepunishable under Section 494 read with Section 109 IPC. Thesaid finding of the court below cannot be termed either informor defective warranting interference in this appeal. There isno scope, whatsoever, to interfere with the well consideredfinding of the trial court. 17. The court below has rightly concluded that none of thecharges against the respondents herein/accused had been provedbeyond reasonable doubt and that the respondents herein wereentitled to be acquitted of the offences with which they stoodcharged. The judgment and order of acquittal passed by thelearned Judicial Magistrate No.1, Dharmapuri does not sufferfrom any defect, discrepancy, infirmity or illegality and thesame has got to be confirmed. There is no merit in the appealand the same deserves to be dismissed. Accordingly this appealis dismissed.AsrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Judicial Magistrate No.1, Dharmapuri+ 1 cc to Mr. M. Selvam, Advocate SR No. 5979Judgment inCrl.A.No.1460 of 2002JSV(CO)SR/26.6.2008