Anjali v. 1. The Inspector of Police All Women Police Station Erode (Crime No.5/01)2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-07-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1573/2004 & Crl.A.No.138/2005Crl.R.C.No.1573 of 2004Anjali..Petitioner-vs-1. The Inspector of Police All Women Police Station Erode (Crime No.5/01)2. B.John3. B.Leelavathi.. RespondentCrl.A.No.138 of 2005State rep.byInspector of PoliceAll Women Police StationErodeCrime No.5/2001 .. Appellant-vs-1. P.John2. D.Leelavathy .. RespondentsThe revision and the appeal are filed against the Judgementdated 25.6.2004 in C.C.No.200 of 2001 on the file of the learned JudicialMagistrate No.1, Gobichettipalayam.For petitioner : Mr. M.M.Sundresh For appellant/1st respondent in Crl.R.C.No.1573/2004: Mr.V.R.Balasubramaniam Additional Public ProsecutorFor respondents in Crl.R.C.No.1573/2004 : Mr.S.Ashok Kumarand in Crl.A.No.138/2005 for Mr.P.Thangavel-RR2 & 3 and R1 and R2 respectively https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Both revision and the appeal arise out of a Judgment in C.C.No.200 of2001 on the file of the Judicial Magistrate No.1, Gobichettipalayam, whichhad arisen out of a private complaint filed by the complainant underSection 200 of Cr.P.C. for an offence under Section 506 (ii) and 406 ofIPC and under Section 6 of the Dowry Prohibition Act. 2. After taking cognizance, the learned Judicial Magistrate hadissued summons to the accused and on their appearance copies under Section206 of Cr.P.C. were furnished to the accused and when charges underSection 406 and 506 (ii) of IPC and under Section 6 of the DowryProhibition Act were framed and when questioned , the accused pleaded notguilty.3. Before the trial Court, P.Ws 1 to 7 were examined and Exs P1 toP16 were exhibited.4. P.W.1 is the complainant. According to her, the marriagebetween her and the son of the accused viz., John was solemnised on19.7.1997 in the C.S.I. Mission Church, Gobichettipalayam and at the timeof the marriage, the parents of the complainant had presented 20sovereigns of gold ornaments , besides Rs.10,000/- cash and also 10sovereigns of golden thali chain and five sovereigns of Necklace and agolden chain weighing 2 sovereigns besides presenting a ring and chain onthe eve of Christmas and that she also lived along with her husband withthe accused in a joint family and that her husband Thiyagarajan wasworking as a driver in the Public Works Department and that she livedhappily for two years after the marriage and that her husbandThiyagarajan developed frequent fever and was suffering from HIV positiveand under the pretext of constructing a house, the accused had received 20sovereigns of gold ornaments from her(P.W.1) and also assured that withinone year from the date of marriage, they will return the gold ornamentsback to her. According to P.W.1 with the sale proceeds of 20 sovereignsof ornaments handed over by her , the accused have constructed the housebut her husband could not recover from his illness and breathed his laston 28.8.1999 at 5.00p.m., 40 days after the death of her husband, shealong with her parents and relatives approached the accused for the returnof gold jewels weighing 20 sovereigns and cash and other householdarticles like Bureau, cot, Mixi and Grinder which were presented to her atthe time of the marriage by her parents. But the accused have criminallyintimidated her to leave the house. According to her, she had preferred acomplaint to the All Women Police Station at Udumalpet, but the policehave not taken any action on her complaint. Hence she has preferred Ex P1private complaint before the Judicial Magistrate, Udumalpet. Ex P2 is thecomplaint preferred by her before the Udumalpet Police. Ex P3 is the copyof the complaint. https://hcservices.ecourts.gov.in/hcservices/ 4a. P.W.2 is the father of P.W.1, who would admit that the marriagebetween P.W.1 and the deceased Thiyagarajan took place in theC.S.I.Mission Church on 19.5.1997 at Gobichettipalayam and at the time ofthe marriage, he presented 17 sovereigns of gold ornaments for hisdaughter and three sovereigns of chain to his son-in-law besidespresenting Rs.10,000/- cash. According to him, he has also presented aBureau, Cot, Mixi and Grinder at the time of marriage and that they havelived together happily for nearly one year. But subsequently, his son inlaw developed fever and later it was diagonised that he was suffering fromHIV positive and on 28.8.1999 Thiyagarajan died in the hospital and 40days after the death of his son in law, he along with P.W.1, made a demandto the accused to return the jewels as well cash and other householdarticles presented at the time of the marriage. But the accused refused toheed to the request made by him and his daughter and that a complaint waspreferred by P.W.1 with the All Women Police at Udumalpet . He wouldfurther admit that his daughter is also suffering from HIV positive.4b. P.W.3 is the mother of P.W.1. She has also corroborated theevidence of P.W.2 her husband and that after the death of her son in law ,P.W.1 made a demand to the accused to return the gold ornaments and cashand other house hold articles presented to her at the time of the marriagebut they have refused to return the same.4c. P.W.4 is the cousin brother of P.W.1. He would depose that at thetime of the marriage of P.W.1, her parents have presented 10 sovereigns ofgold ornaments, golden chain and necklace weighing 5 sovereigns and achain weighing 2 sovereigns and cash of Rs.10,000/- besides house holdarticles and a month after the marriage, the accused have received thejewels and cash from P.W.1 for the purpose of constructing a house forthem and when P.W1 and her parents demanded for the return of jewels andcash besides furnitures, 40 days after the death of P.W.1's husband, theaccused refused to return the same on the ground that they have alreadyconstructed the house with the sale proceeds of the jewels.4d. P.W.5 is the uncle of P.W.1, a retired teacher. According tohim, P.W.1's husband died on 28.8.1999 due to Jaundice and 40 days afterthe death of P.W1's husband, P.W.1 and her parents demanded from theaccused to return all the jewels and cash and other house hold articlespresented at the time of her marriage but the same was refused by theaccused. According to him, 20 sovereigns of jewels are only with theaccused. https://hcservices.ecourts.gov.in/hcservices/ 4e. P.W.6 is the then Inspector of Police,All Women Police Station ,Erode. She had received the private complaint sent by the Court throughpost on 22.3.2002 and registered the case under All Women Police Station,Erode in Crime No.5/2001 under Sections 406 and 506(ii) of IPC and underSection 6 of the Dowry Prohibition Act. She, after completing theformalities, had filed the charge sheet against the accused. Ex P12 is thecopy of the first information report. Exs P14 and Ex P15 are the orders ofher higher officials in connection with this case.4f.P.W.7 is the then Sub Inspector of Police, All Women PoliceStation, Udumalpet. According to her, the complaint was received fromP.W.1 and the same was registered under Udumalpet Police Station CrimeNo.1/2001 under Sections 406 and 506(ii) of IPC and under Section 6 of theDowry Prohibition Act. Ex p12 is the first information report on theground of jurisdiction, she had transferred the entire records to the AllWomen Police Station Erode, along with Ex P16 letter.5. When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, they would deny their complicity with the crime. Onthe side of the accused, D.W1 was examined and Exs D1 to D3 were marked.6. The learned Trial Judge, after going through the oral anddocumentary evidence has held that the charges levelled against theaccused under Sections 406 and 506(ii) of IPC and under Section 6 of theDowry Prohibition Act were not proved beyond any reasonable doubt andaccordingly acquitted the accused under Section 248(1) of Cr.P.C.Aggrieved by the findings of the learned trial Judge, thecomplainant/P.W.1 has preferred Crl.R.C.No.1573 of 2004 and the State haspreferred Crl.A.No.138 of 2005.7. Now the point for determination in the revision as well as in theappeal is that the findings of the learned trial Judge is perverse innature to warrant any interference from this Court?8. Heard Mr. M.M.Sundresh, learned counsel appearing for the revisionpetitioner, Mr.S.Ashok Kumar, learned counsel appearing for therespondents and Mr.V.R.Balasubramaniam, the learned Additional PublicProsecutor for the State and considered their respective submissions. https://hcservices.ecourts.gov.in/hcservices/

9. The Point:The only important reason assigned by the learned trial Judge fordismissing the case of the complainant is that there is a discrepancy inEx P1 complaint and the evidence adduced by her before the Court as P.W.1.In Ex P1 complaint, it is the case of the complainant that at the time ofher marriage with deceased Thiyagarajan, the son of the accused, 20sovereigns of gold ornaments were presented to her and the same wereentrusted to the accused at their request for the purpose of raising fundsfor constructing their house and even after the construction of the housewas over, the accused refused to return the said gold ornaments weighing20 sovereigns to her even after demand was made by her 40 days after thedeath of her husband.10. But P.W.2 and P.W.3 the parents of P.W.1 in their evidence woulddepose that at the time of the marriage 17 sovereigns of gold ornamentswere presented to P.W.1 and 3 sovereigns of gold chain was presented totheir son-in-law, the deceased Thiyagarajan. As per Ex P1 complaint, thecomplainant would state that besides 20 sovereigns of gold ornaments, asum of Rs.15,000/- and another sum of Rs.10,000/- were presented at thetime of the marriage by her parents.11. But P.W.2 , the father of P.W.1 in his evidence would depose thatshe gave only Rs 10,000/- by way of cash at the time of the marriage tohis son-in-law deceased Thiyagarajan but P.W.3, the mother of P.W.1 wouldstate that a sum of Rs.10,000/- was handed over to her son-in-law in cashand another sum of Rs.15,000/- was given to her son-in-law for thepurchase of furniture. Further according to P.W.1, Rs.10,000/-worth offurnitures were purchased from Vasanth and Company on 26.2.1997. ie threemonths before the date of her marriage ie., on 19.5.1997. 12. To substantiate her contention, she had produced a receipt ExP11. But Ex P11 receipt dated 21.2.1997 was issued by Vasanth Agenciesand not by Vasanth and Co.,. As correctly observed by the learned trialJudge there is no evidence let in by the complainant to show that thefurniture purchased under Ex P11 receipt were transported to the house ofthe accused after her marriage. 13. But P.W.1 in her cross examination would depose that thefurnitures were purchased by her parents only after her marriage that tooafter she began to live in the house of the accused. She has produced ExP10 sale deed in the name of her father-in-law to show that only out ofthe sale proceeds of her 20 sovereigns of gold ornaments, her father-in-law had purchased the land under Ex P10 . It is no where stated in Ex P10that out of the sale proceeds of jewels belonging to P.W.1, the propertywas purchased under Ex P10. The sale consideration shown in Ex P10 isRs.1,50,000/-. https://hcservices.ecourts.gov.in/hcservices/

14. Under such circumstances, it is the duty of the complainant toshow that her 20 sovereigns of gold ornaments were sold for Rs.1,50,000/-and the same was utilised for the purchase of land under Ex P10. But thereis absolutely no evidence let in on the side of the complainant to showthat her jewels were sold for Rs.1,50,000/- by the accused. So the chargeagainst the accused under Sections 406, of IPC and under Section 6 of theDowry Prohibition Act falls to the ground as rightly held by the Courtbelow. 15. To bring home the guilt against the accused under Section 506(ii)of IPC and under Section 6 of the Dowry Prohibition Act, also there isabsolutely no evidence let in by the complainant. Even the date on whichP.W.1 was criminally intimidated by the accused is not spoken to by her,while deposing as P.W.1 before the trial Court. 16. At paragraph 9 of her complaint ExP1, P.W.1 has stated thatafter the death of her husband when her parents questioned the accused whythey have concealed the fact that their son was affected by HIVpositive,the accused got enraged and asked P.W.1 and her parents to go outof the house and if they have failed to do so, they have to face direconsequences. But this part of the allegation in Ex P1 was not spoken to by P.W.2 while deposing before the trial CourtP.W.3 has not stated in her evidence about any criminal intimidation ofaccused against P.W.1 at the time when she along with her parents made ademand for the return of the jewels and cash.17.According to the complainant, she had preferred the complaint withAll Women Police Station,Udumalpet on 13.5.2000 against the accused fortheir refusal to return the gold ornaments and cash presented to her atthe time of the marriage. But the said copy of the complaint was notmarked before the trial Court in this proceedings. Under suchcircumstances I do not find any perverseness in the findings of thelearned trial Judge to warrant any interference from this Court. The pointis answered accordingly.18. In fine, Crl.R.C.No.1573 of 2004 and Cr.A.No.138 of2005 aredismissed confirming the judgment in C.C.No.200 of 2001 on the file of theJudicial Magistrate, No.1, Gobichettipalayam.sgSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate, No.1, Gobichettipalayam2. -d0-the Chief Judicial Magistrate, Erode.3. The Public Prosecutor, High Court, Madras4. The Inspector of Police, All Women Police Station, Erode.+1 cc to Mr.Ma.P.Thangavel, Advocate Sr.No.44596.VRK(CO)dcp/27.7.07Crl.R.C.No.1573/2004& Crl.A.No.138/2005