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C.Jayakumar vs The State Rep. By on 29 November, 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.11.2018

CORAM

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

CRL.R.C.No.171 of 2011

C.Jayakumar .. Petitioner

Vs

The State rep. by
Sub Inspector of Police,
All Women Police Station,
Ambur, Vellore District. .. Respondent

Criminal Revision Petition filed under Sections 397 r/w 401 of Cr.P.C.
praying to set aside the order dated 06.01.2011 passed by the Additional
District and Sessions Court (FTC), Tirupattur, Vellore District in Crl.A.No.17 of
2007.
For Petitioner : Mr.D.Balachandran
For Respondent : Mr.G.Ramar,
Govt. Advocate (Crl. Side)

ORDER

This revision petition has been preferred challenging the order dated

06.01.2011 passed by the Additional District and Sessions Court (FTC),

Tirupattur,
http://www.judis.nic.in Vellore District in Crl.A.No.17 of 2007.
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2.Heard Mr.Balachandran, learned counsel for the revision petitioner

and learned Government Advocate (Crl. Side).

3.It is the case of the prosecution that Jayakumar (A1) approached

the parents of Jayakanthi (PW1), viz. Ellammal (PW2) and Munusamy (PW4)

and sought to marry Jayakanthi (PW1) and they agreed to give Jayakanthi

(PW1) in marriage; betrothal was held on 06.05.2004 and the date of marriage

was fixed to 31.05.2004; in the interregnum, it is alleged that Jayakumar (A1)

seduced Jayakanthi (PW1), on account of which, she became pregnant and

delivered a female child; however, Jayakumar (A1) reneged and demanded 15

sovereigns of gold, Rs.10,000/- and a motorcycle as additional dowry; during

enquiry, it came to light that Jayakumar (A1) was already married to Jothi (A2).

Hence, on the complaint (Ex.P1) given by Jayakanthi (PW1), the Police

registered FIR in Crime No.9 of 2004 and after completing the investigation,

filed final report in C.C.No.230 of 2005 before the Additional District Munsif-

cum-Judicial Magistrate, Ambur against Jayakumar (A1) for the offences under

Section 417, 420, 493 IPC and Section 4 of the Dowry Prohibition Act. On the

appearance of Jayakumar (A1), the provisions of Section 207 Cr.P.C. were

complied with and charges for the aforesaid offences were framed against him.

When questioned, he pleaded “not guilty”.

4.To prove the charges, the prosecution examined 16 witnesses and
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marked 5 exhibits.

5.At this juncture, it may be relevant to state here that one Jothi

was examined as PW7 before the trial Court. After her examination, she was

transposed as A2 by the trial Court under Section 319 Cr.P.C. for abetment

under Section 109 IPC.

6.When the accused were questioned about the incriminating

circumstances against them under Section 313 Cr.P.C., they denied the same.

7.No witness was examined on behalf of the accused nor any

document marked. After considering the evidence on record and hearing

either side, the trial Court, convicted and sentenced Jayakumar (A1) for the

substantive offence and Jothi (A2) for abetment under Section 109 IPC as

follows:

“Under Section 417 IPC 2 years Rigorous
Imprisonment fine of Rs.10,000/- in default 3 months Simple
Imprisonment; under Section 420 IPC 3 years Rigorous
Imprisonment fine of Rs.10,000/- in default 6 months Simple
Imprisonment; under Section 493 IPC 3 years Rigorous
Imprisonment fine of Rs.10,000/- in default 3 months Simple
Imprisonment; under Section 4 of Dowry Prohibition Act 2 years
Rigorous Imprisonment fine of Rs.10,000/- in default 3 months
Simple Imprisonment.”

8.Challenging the conviction and sentence, Jayakumar (A1) and
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Jothi (A2) filed appeals in Crl.A.No.17 of 2007 and 59 of 2008 respectively

before the Court of Session, Tirupattur. The Court of Session, Tirupattur

allowed Crl.A.No.59 of 2008 and set aside the conviction and sentence of

Jothi (A2). As regards Jayakumar (A1), the appellate Court acquitted him for

the offence under Section 420 and 493 IPC and confirmed the conviction for

the offence under Section 417 IPC and Section 4 of Dowry Prohibition Act.

However, the sentence was reduced to 6 months Rigorous Imprisonment for

both the offences and the fine amount of Rs.10,000/- has been maintained.

Challenging the conviction and sentence, Jayakumar (A1) is before this Court.

9.Learned counsel submitted that both the Courts had failed to

appreciate the evidence of the witnesses in the right perspective. He

contended that no documentary evidence has been filed by the prosecution, in

order to establish that betrothal was held on 06.05.2004. He further

contended that there was no deception at inception to attract the provisions of

cheating as alleged by the prosecution.

10.Per contra, learned Government Advocate (Crl. Side) refuted the

contentions.

11.This Court gave its anxious consideration to the rival submissions.

12.The fact remains that the trial Court and the appellate Court have
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gone into the evidence adduced by the prosecution and has held that the

accused came forward to marry Jayakanthi (PW1) and after betrothal on

06.05.2004, he seduced her by representing that he is going to marry her and

after she became pregnant, he reneged and started demanding more dowry

from the family of Jayakanthi (PW1). While exercising powers under Section

397 Cr.P.C., this Court cannot re-appreciate the evidence, unless it is shown

that material evidence have been overlooked by the trial Court and the

appellate Court. This Court may profitably refer to the following passage in the

judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh

Kuldip Singh Anand and Others, etc. [(2004)7 SCC 659.]

“22.The revisional court is empowered to exercise all
the powers conferred on the appellate court by virtue of the
provisions contained in Section 401 CrPC. Section 401 CrPC is a
provision enabling the High Court to exercise all powers of an
appellate court, if necessary, in aid of power of superintendence
or supervision as a part of power of revision conferred on the
High Court or the Sessions Court. Section 397 CrPC confers
power on the High Court or Sessions Court, as the case may be,

“for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of
any finding, sentence or order, recorded or passed,
and as to the regularity of any proceedings of such
inferior court”.

It is for the above purpose, if necessary, the High Court or the
Sessions Court can exercise all appellate powers. Section 401
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CrPC conferring powers of an appellate court on the revisional
court is with the above limited purpose. The provisions contained
in Section 395 to Section 401 CrPC, read together, do not indicate
that the revisional power of the High Court can be exercised as a
second appellate power.

(emphasis supplied)

13.Dhanraj (PW3) in his evidence has stated that he is the

Headmaster of local Government School and that, Jayakumar (A1) is his

nephew and was unmarried; Jayakumar requested him to look out for a bride

since, he found difficulty in bachelorhood; hence, PW3 introduced Ellammal

(PW2), who was working as a noon meal organizer in the school; later he came

to know that betrothal was conducted and he also heard that Jayakanthi (PW1)

became pregnant. The accused has not denied these aspects.

14.Ellammal (PW2) and Munusamy (PW4), parents of Jayakanthi

(PW1) in their evidence stated that Jayakumar (A1) was introduced by Dhanraj

(PW3) as a suitable groom for their daughter Jayakanthi (PW1). Since they did

not know that Jayakumar (A1) was married earlier, they agreed to give their

daughter in marriage. They conducted the betrothal on 06.05.2004 and the

marriage between Jayakumar (A1) and Jayakanthi (PW1) was fixed to

31.05.2004.

15.Jayakanthi (PW1) in her evidence has spoken about the betrothal

and she has further stated that after betrothal, Jayakumar (A1) came to her
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house, when her parents were not there and had physical relationship on the

promise that he is going to be her husband. After she became pregnant, she

informed this to Jayakumar (A1) and he changed track. He started demanding

15 sovereigns of gold, Rs.10,000/- as dowry and a motorcycle. This part of the

evidence has been corroborated by Ellammal (PW2) and Munusamy (PW4).

16.Arulmozhi (PW6) the local Panchayat President has stated that

the accused Jayakumar is his relative and the betrothal ceremony was done in

the house of Jayakanthi (PW1).

17.Sekar (PW8) the brother of the accused Jayakumar has also

supported the prosecution case by deposing that he attended the betrothal.

18.Thus, there are overwhelming materials to show that Jayakumar

(A1) came forward to marry Jayakanthi (PW1) and betrothal was held on

06.05.2004. In the countryside, such functions are held by informing the

relatives and kinsmen and a formal invitation card would not be printed. All the

witnesses have stated that after the betrothal and before the marriage,

Jayakanthi (PW1) delivered a female child.

19.The Investigating Officer made an application before the

Additional District Munsif-cum-Judicial Magistrate, Tirupattur to send the

accused Jayakumar, Jayakanthi (PW1) and the child for DNA profiling. On the
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directions of the learned Magistrate, DNA profiling was done and the DNA

report dated 04.04.2005 submitted to the Court by the Forensic Sciences

Department, marked as Ex.P5, shows that the accused Jayakumar is the

biological father and Jayakanthi (PW1) is the biological mother of the child.

20.There are also sufficient materials to show that the marriage did

not go through because, the accused Jayakumar had already got married to

Jothi on 10.11.1999, which fact he concealed even to his close relatives, viz.

Dhanraj (PW3), Arulmozhi (PW6) and Sekar (PW8).

21.The prosecution have examined Jayammal (PW11), the Sub

Registrar to prove that the marriage between Jayakumar (A1) and Jothi (A2)

was registered on 24.05.2004 and the registration certificate has been marked

as Ex.P2. Hence, it cannot be stated that the accused did not have the

intention to cheat Jayakanthi (PW1) at the inception.

22.Learned counsel for the petitioner submitted that now Jayakanthi

(PW1) has initiated proceedings in M.C.No.10 of 2014 under Section 125

Cr.P.C. before the Family Court, Vellore against the accused Jayakumar and

has also obtained order of maintenance.

23.In the opinion of this Court, this subsequent development is in

the year 2014 and that cannot in any way absolve the accused of the liability
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for the offence that was committed in the year 2005. In fact, this only shows

that the accused has failed and neglected to maintain the child born to him.

This Court is of the view that the appellate Court ought not to have reduced

the sentence to six months Rigorous Imprisonment in a case of this nature.

24.In the result, this revision petition stands dismissed and the

sentence of six months imprisonment for the offence under Section 417 IPC

should be undergone by the accused Jayakumar and thereafter, he shall

undergo the sentence of six months imprisonment for the offence under

Section 4 of the Dowry Prohibition Act. In other words, the sentences are

directed to run consecutively and not concurrently. The bail bonds are

cancelled and the trial Court is directed to take the accused Jayakumar into

custody for undergoing the sentence.

29.11.2018
gya

To

1.Additional District and Sessions Court (FTC),
Tirupattur,
Vellore District.

2.The Sub Inspector of Police,
All Women Police Station,
Ambur, Vellore District.

3.The Public Prosecutor,
High Court,
Madras.

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P.N.PRAKASH, J.

gya

CRL.R.C.No.171 of 2011

29.11.2018

http://www.judis.nic.in

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