Madras High Court N.Padmanabhan-vs-State Rep By on 27 October, 2010
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.R.C.No.856 of 2010
N.Padmanabhan .. Petitioner
State Rep By
The Inspector of Police
All Women Police Station .. Respondent
PRAYER: Criminal Revision Case filed under section 482 of Criminal Procedure Code praying to set aside the order of the learned Addl. District and Sessions Judge, Salem in C.A.No.123 of 2009 dated 14.05.2010, confirming the order of the learned Judicial Magistrate III, Salem in C.C.No.88 of 2007 by order dated 22.10.2009. For Petitioner : Mr.R.Vijayaraghavan
For Respondent : Mr.I.Paul Nobel Devakumar
Govt. Advocate (Crl.side)
The petitioner in this criminal revision case was the first accused in C.C.No.88 of 2007 on the file of learned Judicial Magistrate No.III, Salem. He was prosecuted along with four other persons for alleged offences punishable under Sections 498-A, 506(ii) and 342 IPC and Section 4 of the Dowry Prohibition Act. After trial, the other four accused persons, who were none other than the parents, sister and sister’s husband of the petitioner, were acquitted of all the offences by the trial Court by a judgment dated 22.10.2009. By the very same judgment, the petitioner, who figured as A1 was convicted and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.500/- and to undergo simple imprisonment for a period of one month in case of default in payment of fine for the offence under Section 498-A alone. He was acquitted of the other offences, namely offences under Sections 506(ii) IPC and 342 IPC and Section 4 of Dowry Prohibition Act.
2. Challenging the said conviction and sentence, the petitioner preferred an appeal before the Sessions Court, Salem in C.A.No.123 of 2009. The same came to be disposed of by a judgment of the Additional District and Sessions Judge, Salem dated 14.05.2010, confirming the conviction recorded and sentence imposed by the trial Court for the offence under Section 498-A IPC. The correctness and the legality of the said judgment of the lower appellate Court is questioned by the petitioner in the present criminal revision case.
3. Before admission, the learned Government Advocate(Crl.side) took notice on behalf of the respondent police. The arguments advanced by Mr.R.Vijayaraghavan, learned counsel for the petitioner and that of Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) were heard. The documents produced in the form of typed-set of papers, including the judgments of the Courts below, were also perused.
4. It is the contention of the learned counsel for the petitioner that there is perversity in the finding of the trial Court, which was confirmed by the lower appellate Court, in so far as the veracity PW1 was disbelieved in respect of the charges levelled against the other persons whereas the conviction of the petitioner for the offence under Section 498-A was based on the testimony of the very same witness, namely PW1. It is the further contention of the learned counsel for the petitioner that there was suppression of an earlier complaint and the complaint based on which the registration of the case in Cr.No.5 of 2007 on the file of All Women Police Station, Salem Town leading to the conviction of the petitioner for the offence under Section 498-A IPC was the one lodged after deliberation, which aspect, according to the learned counsel for the petitioner, was not properly considered either by the trial Court or by the lower appellate Court. The learned counsel also contended that the courts below having disbelieved the evidence of prosecution witnesses regarding the demand of dowry and having acquitted the petitioner as well as the other co-accused for the offence of demanding dowry, namely one punishable under Section 4 of the Dowry Prohibition Act, ought to have held that the offence under Section 498-A also was not proved beyond reasonable doubt. The main contention of the petitioner seems to be that, PW1, after marriage wanted the petitioner to set up a separate residence for themselves, where the in-laws of PW1, namely the parents of the petitioner would not be there and on coming to know that she could not achieve the object, she had chosen to desert the petitioner and give a false complaint, as if there was demand of dowry and cruelty committed on her.
5. The submissions made by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.side) in response to the above said submissions made by the learned counsel for the petitioner were also taken into consideration by this Court.
6. Upon considering the judgments of the Courts below in the light of the submissions made on either side, this Court comes to the conclusion that no case has been made out by the petitioner for interference with the concurrent findings of the Courts below holding the petitioner guilty of the offence under Section 498-A IPC. The reasons are furnished in the succeeding paragraphs.
7.The first and foremost contention of the petitioner is that there was a previous complaint which ended in a compromise before the police officer, who conducted an enquiry on such complaint and that after such compromise, finding that her demand for setting up a separate residence for themselves, could not be accomplished, she caused concoction and lodged a fresh complaint after due deliberation. Admittedly, PW1, the wife of the petitioner had to lodge a complaint with the police on 06.01.2007 alleging harassment on the part of the petitioner as well as his parents under Ex.D1. The police, without registering a case, conducted an enquiry and on being enquired by the police, the petitioner agreed for setting up a separate residence for himself and his wife, namely PW1 and such undertaking was given in the form of a statement on 10.01.2007, a copy of which has been marked as Ex.D3. In the said statement, the petitioner had undertaken to set up a separate residence for himself and his wife to live away from his parents, within fifteen days from the date of such statement. But, instead of complying with the said undertaking, the petitioner chose to issue a lawyer’s notice on 25.01.2007, a copy of which has been marked as Ex.D5, making allegations as if the wife, namely PW1, was suffering from some loathsome disease and seeking consent for divorce. Not stopping with that, the petitioner has also filed petition before the family Court, Salem for divorce in F.C.O.P.No.273 of 2007, a copy of which has been marked as Ex.D6. Under such circumstances alone, the wife of the petitioner, namely PW1 was forced to lodge Ex.P2 complaint on 02.02.2007.
8.Clear allegations have been made against the petitioner in the said complaint narrating the ways and means by which PW1 was treated with cruelty (both mental and physical) and harassment. It could also be noticed from the evidence, both oral and documentary, that the petitioner traded charges against his wife PW1 that she was suffering from breast cancer and also from some loathsome disease which caused emanation of unbearable odour detracting him from approaching her. Evidence has been adduced to show that only because of such allegations, she was subjected to medical test which falsified the said allegations. Clear evidence has also been adduced to the effect that she was also made to undergo a test to find out whether she was infected with HIV. She has also given clear evidence to the effect that, even during the period she was with the petitioner, the petitioner refused to give her the conjugal bliss and refused to have sex with her citing those untenable reasons. All the said acts, will no doubt, amount to cruelty causing utmost mental torture, if not physical harassment.
9.The mere fact that within three months after the marriage, she had to give a complaint, which lead to a compromise resulting in the submission of an undertaking by the petitioner to set up a separate residence for himself and his wife, shall not be enough to disbelieve her testimony that even during that three months period she was subjected to cruelty and harassment. No prudent wife will venture to shut the possibility of reunion by lodging a complaint alleging cruelty and harassment within three months from the date of marriage, with the intention of prosecuting her husband for criminal offence. The natural course of action that shall be taken by a prudent wife is to keep open the chances of settlement. In this case what PW1 did was nothing but the same. At the first instant, she gave complaint alleging harassment, but requested the police not to take any drastic action so as to shut the doors of settlement and reunion. That is the reason why the enquiry in the previous complaint dated 06.01.2007 resulted in a compromise on the petitioner’s giving a statement containing an undertaking that he will set up a separate residence for himself and his wife. The petitioner has also subjected PW1 to medical examination on the alleged premise that she was suffering from loathsome disease. Soon after PW1 received a legal notice from the petitioner containing untenable allegations, she realized the colour of the petitioner and submitted the complaint leading to the prosecution of the petitioner along with the other co-accused. Therefore, the contention of the learned counsel for the petitioner that there was suppression of the earlier complaint and a fresh complaint with concoction was given after deliberation has got to be rejected, which the courts below have rightly done.
10.. The next contention of the petitioner is that when all the other accused having been acquitted of all the offences with which they stood charged disbelieving the evidence of PW1, the petitioner alone ought not to have been convicted and that the very same yardstick should have been applied for the petitioner also. The said contention is based on the assumption that the testimony of PW1 was rejected by the trial Court as unreliable. But, in fact it is not so. What the learned trial Judge has stated is not that PW1 is not a trustworthy witness and her evidence does not inspire confidence. On the other hand it has observed that her evidence shall not be sufficient to hold that the charges levelled against the other accused have been proved beyond reasonable doubt. Such a view was expressed only on the ground that the other accused were living in a separate portion. We cannot go into the question of correctness of the said finding in this criminal revision. Suffice to observe that the Courts below have not held PW1 to be a untrustworthy witness. What the courts have held is that her evidence is not sufficient warranting a conviction of the other accuse persons. Therefore, the above said contention raised on behalf of the petitioner also deserves discountenance.
11. The next contention raised on behalf of the petitioner is that the petitioner having been acquitted of all other offences, especially the offence of demanding dowry punishable under Section 4 of the Dowry Prohibition Act, ought not to have been convicted for the offence under Section 498-A. Of course, it is true that the Courts below have held that demand of dowry alleged by the prosecution was not proved. But Section 498-A is not confined to cruelty and harassment demanding dowry. For better appreciation the entire Section 498-A is extracted hereunder:- "498A. Husband or relative of husband of a woman subjecting her to cruelty
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section, "cruelty" means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.]
12. If the act alleged falls under Explanation (b), then only the act should be with the intention of extracting dowry. If it falls under explanation (a), it need to be with the object of getting any dowry or valuable security. Therefore, the mere fact that an accused is acquitted of the offence under Section 4 of the Dowry Prohibition Act, shall not be enough to come to the conclusion that he could not have committed an offence punishable under Section 498-A explanation (a). As pointed out supra, clear evidence has been adduced to show that PW1 was subjected to harassment, which would amount to mental cruelty, if not physical cruelty, which shall be enough to sustain a conviction for an offence under Section 498-A.
13.There is no defect or infirmity in the concurrent findings of the Courts below holding the petitioner guilty of the offence under Section 498-A IPC and hence, no interference with the same is warranted. Considering the question of sentence also, the punishment awarded by the trial Court and confirmed by the lower appellate Court cannot be said to be either disproportionate or harsh. In respect of the punishment also, there is no scope for interference.
14. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the criminal revision case and the same deserves to be dismissed. Accordingly, this criminal revision case is dismissed. Consequently, the connected miscellaneous petition is closed. gpa
1. The Inspector of Police
All Women Police Station
2.The Addl. District and Sessions Judge,
Salem Judicial Magistrate III, Salem
3.The Public Prosecutor
Madras High Court