Madras High Court P.N. Saravana Bhavanandam-vs-State Of Tamil Nadu And Anr. on 8 September, 1998
Equivalent citations:I (2000) DMC 63
Author: M Karpagavinayagam
Bench: M Karpagavinayagam
M. Karpagavinayagam, J.
1. Mr. P.N. Saravana Bhavanandam, the petitioner herein has filed this Revision challenging the judgment passed in C.A. No. 180 of 1998 on the file of the learned Principal Sessions Judge, Madras acquitting the second respondent accused by setting aside the judgment of conviction for the offences under Sections 306 and 498A of Indian Penal Code in S.C. No. 12 of 1987 on the file of the Assistant Sessions Judge, Poonamalli.
2. The facts of the case are as follows :
The second respondent Murugiyan married the deceased Bhakiarani @ Usharani on 25.5.1983. After the marriage, they lived together for about fifteen days at Thanjavur. Thereafter, the second respondent took gold chain weighing 12 sovereigns, bangles weighing 5 sovereigns for the purpose of buying some land in his village. Three months later the deceased was left at the house of the accused at Madras. In course of time, the second respondent insisted that the house site standing in the name of the deceased should be sold and the money should be given to him. In the meantime, the deceased Bhakiarani became pregnant and for delivery she was sent to her parents’ house. On 29.2.1984 deceased delivered a female child. This was intimated to the second respondent. However, he refused to go to the parents’ house of the deceased to see her as well as their child. Thereafter, the Panchayatars intervened and so, the deceased and her baby came and joined back with the husband. On 17.10.1985 at 2.30 p.m. the deceased Bhakiarani sustained injuries due to burns and she was taken to hospital and there she died.
3. On the complaint the case was registered originally under Section 174, Criminal Procedure Code and after her death, it was converted into Sections 306 and 498A of Indian Penal Code and Section 4 of the Dowry Prohibition Act.
4. After investigation, charge sheet had been filed. During the course of the trial. PW1 to PW 34 were examined, through whom Ex. P1 to Ex. P44 were filed and MO 1 to 21 were marked. On the side of the defence Ex. D1 to D6 were filed.
5. On consideration of the materials adduced by both the parties, the learned Assistant Sessions Judge in S.C. No. 12 of 1987 by the judgment dated 10.7.1987 convicted the second respondent and setenced him for the offence under Section 306 of I.P.C. to undergo seven years rigorous imprisonment and to pay a fine of Rs. 5,000/- and under Section 498A to undergo three years rigorous imprisonment and for offence under Section 4 of Dowry Prohibition Act, 1961 to undergo two rigorous imprisonment with fine of Rs. 5,000/-.
6. Aggrieved over the said judgment, the second respondent filed an appeal in C.A. No. 180 of 1998, challenging the said conviction and sentence. The lower Appellate Court after detailed consideration of the judgment of the lower Court as well as the materials projected by the prosecution and the defence, came to the conclusion that offences were not proved beyond reasonable doubt and thereby acquitted the accused in respect of the offences for which he was convicted.
7. It is seen from the records that initially State has preferred an appeal against the judgment of the acquittal and the same came up for admission before this Court. At that point of time, the learned Public Prosecutor represented before this Court that he was instructed to withdraw the said appeal and requested the Court to permit him to withdraw the same in pursuance of the direction given by the Government. Accordingly, the appeal was dismissed as withdrawn.
8. In this context, I shall point out that, it is unfortunate on the part of the learned Public Prosecutor to have asked for permission from the Court to withdraw the appeal merely on the basis of the instruction given by the Government. Having given opinion that it is a fit case for appeal, and having filed the same before this Court, I am at a loss to understand as to how the Public Prosecutor in obedience to the directions by the Government could request the Court to allow him to withdraw the said appeal.
9. In my view, the learned Public Prosecutor has abdicated his position by requesting the Court to permit him to withdraw the said appeal as directed by the Government.
10. As held by this Court as well as the Apex Court the learned Public Prosecutor is the authority, who has to decide whether to file an appeal or not. Even, if he is requested to withdraw the case or appeal he has to apply his mind and take decision and then file an application before the Court by giving reasons for the said withdrawal. But in this case this was not done.
11. I am pained to see that in this case the learned Public Prosecutor has totally surrendered his power of discretion, to the Government by simply obeying direction given by the Government to withdraw the matter. The less is better to say more about this.
12. On coming to know that the State withdrew the appeal for the reasons best known to the State, PW 8 the brother of the deceased, the petitioner herein has filed the present revision.
13. Mrs. Geeta Ramaseshan appearing for the petitioner would strenuously contend that the well-considered judgment rendered by the Trial Court has been disturbed by the lower Appellate Court without valid reasons and as such, the Trial Court’s judgment convicting the second respondent has to be restored or in the alternative the matter may be remanded back for fresh disposal by the lower Appellate Court.
14. Mr. V. Padmanabhan, learned Counsel representing Mr. Baskaran, learned Counsel appearing for the second respondent would point out several infirmities found in the findings of the Trial Court in support and justification of the judgment of the lower Appellate Court.
15. I have carefully considered the rival contentions. The case of the defence is that there is no demand of dowry and he did not torture his wife ever for getting more dowry and that the deceased herself on her own accord had made arrangements for selling the house site in her name and to get back her jewels and that Bhakiarani, the deceased died due to accident.
16. Though the evidence let in by both the sides to establish their respective pleas, have been considered by both the Courts below, they have come to the different conclusions. As a matter of fact, the narration of the events and the discussion and appreciation with reference to the materials by the Trial Court, in my view, are not satisfactory.
17. The Court is expected to consider the materials available on record and decide about the veracity of the same and it is not expected to go beyond the parameters outlined by this Court and Apex Court, with reference to the analysis of the evidence adduced before the Court..
18. In my view, the judgment of the Trial Court is a classic example to show how the judgment should not be written. But however in the anxiety to render justice to the victim’s family who died due to burn injuries, leaving behind a female baby, the learned Assistant Sessions Judge has considered the evidence in minute details and concluded that the second respondent must be punished severely. As held by the Apex Court, the Courts are not expected to take decisions on mere emotions and they are only concerned with the materials in the case. One more factor that I could see in the Trial Court judgment is that the entire plea of the accused had been rejected by the Trial Court, merely because the accused/the second respondent happens to be an Advocate. This is most unfortunate. Similarly, it shall be noted that the lower Appellate Court also, in my view, did not analyse the evidence in the proper perspective.
19. One thing is clear. The Trial Court is clearly prejudiced over the fact that the second respondent happens to be an Advocate and thereby concluded the defence plea must be false. Similarly, the lower Appellate Court is also clearly prejudiced over the way in which the judgment had been written by the Trial Court. So, both the judgments are clear outcome of the prejudice.
20. Whatever it is. One material which is found available in the case on record, as pointed out by Lower Appellate Court would clearly show that the respondent might not have been directly responsible for the death of the deceased. Though, several witnesses would speak about the alleged torture regarding dowry demand, the statement of the deceased which was made to the doctor, before her death would make it clear that she was not subjected to dowry torture at any point of time. To doctors namely Mr. Arumugam (PW 5) and Mr. Madhivanan (PW 26), she gave a statement before her death stating that her injury was only due to accident. Therefore, when the deceased was alive, and when she was in a fit condition to give statement before the doctors PW 5 and PW 26, such a statement assumes significance.
21. In the absence of any material against the second respondent in the said statement, the Court cannot conclude that the second respondent was directly responsible for the death of the deceased.
22. Therefore, I am of the view that the finding given by the lower Appellate Court, acquitting the respondent does not call for any interference. 22(a) It is informed to this Court that both the parties have come to some terms of settlement and filed a Memo giving the details of those terms, before this Court.
23. The Memo runs as follows :
“(1) The custody of the minor child Shivasakthi born on 29.2.1984, daughter of the respondent and late Bhagyarani will remain with the maternal grand-father Mr. P.G. Ramachandran.
(2) The respondent undertakes to pay a sum of Rs. 12,000/- (Rupees twelve thousand only) per annum towards educational expenses to the minor child Sivasakthi till the attainment of her majority. The said sum will be paid for a period of three years from the academic year 1997-98. The respondent hereby has given a cheque dated 12.8.1998 No. 393637 drawn on Indian Bank, Ambattur Branch, for a sum of Rs. 12,000/- for the year 1997-98 and the petitioner herewith acknowledges receipt of the same. The said sum for the subsequent years will be paid before June, 1999 and June, 2000 A.D.
(3) The respondent undertakes to withdraw C.M.A. 1449/95 pending before this Hon’ble Court reserving the direction given in para 19 of the judgment rendered in O.P. 38/89 on the file of the Sub-Judge, Kumbakonam.
(4) The respondent has returned to the petitioner seven (7) sovereigns belonging to Bhagyarani.
(5) The respondent will take steps to return all the house-hold articles of Bhagyarani, to the father-in-law Mr. P.G. Ramachandran. The said articles will be despatched by the respondent to Mr. P.G. Ramachandran.
(6) The respondent undertakes to relinquish his right in favour of the minor child Shivasakthi in respect of Plot No. B3, Kannan Nagar, Thanjavur District. The said property is in the name of the minor child’s mother late Bhagyarani and the respondent is relinquishing his share of the same.
Dated at Madras this the 12th day of August 1998.”
24. In pursuance of the above memo, now it is reported that the terms have been complied with, except the term number three. According to term number three, the second respondent has to withdraw C.M.A. 1449 of 1995 pending before this Court, filed by the respondent as against the order passed in O.P. No. 48 of 1989 on the file of the Sub-Judge Kumbakonam.
25. Mr. V. Padmanabhan, learned Counsel for the respondent would submit that whenever the matter appears in the list before this Court, as per the undertaking given in the said Memo, he would withdraw the said C.M.A. 1449/95. Therefore, while recording this Memo as well this submission, made by Counsel for the parties, I dispose of the Revision holding that there is no merit. With these observations, the Revision is disposed of.
26. Before parting with this case, this Court records its appreciation for the help rendered by the Counsel Mrs. Geeta Ramaseshan and Mr. V. Padmanabhan in taking genuine efforts to arrive at settlement between the parties.