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Seranthaiyen vs All Women Police Station on 3 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 03.09.2018

RESERVED ON : 28.08.2018

DELIVERED ON : 03.09.2018

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Crl.R.C(MD)No.518 of 2016

Seranthaiyen : Petitioner/
Accused

Vs.

State represented by
Assistant Commissioner of Police,
Law and Order, Palayamkottai.
[Crime No.10/2005]
[All women Police Station,
Palayamkottai],
Tirunelveli District. : Respondent/
Complainant
PRAYER: Criminal Revision Case is filed under Section 397 read with Section
401 of the Code of Criminal Procedure, to call for the records from the lower
Court and set aside the orders passed by the learned Third Additional
Sessions Judge, Tirunelveli, Tirunelveli District in C.A.No.84 of 2014, dated
10.06.2016, confirming the conviction of the Additional Mahila Court,
Tirunelveli, Tirunelveli District in C.C.No.313 of 2013, dated 28.10.2014, by
allowing the revision.

!For Petitioner : Mr.R.John Sathyan
for Mr.K.Prabhu

^For Respondent : Mr.A.Robinson,
Government Advocate (Crl. Side).

:ORDER

The conviction and sentence passed in Calendar Case No.313 of 2013 by
the learned Judicial Magistrate, Additional Mahila Court, Tiruenlveli, as
modified in Criminal Appeal No.84 of 2014 by the learned Third Additional
Sessions Judge, Tirunelveli challenged in the present Criminal Revision Case.

2.The revision petitioner herein is the accused in C.C.No.313 of 2013
on the file of the learned Judicial Magistrate, Additional Mahila Court,
Tiruenlveli. Based on the complaint given by his wife, Tmt.Valli, First
Information Report was registered against him by the respondent police and
investigated. Since offence under Section 498-A IPC and Section 4 of Dowry
Prohibition Act [hereinafter referred to as ‘D.P. Act’] was made out, final
report was filed against the revision petitioner/accused. The learned
Judicial Magistrate, Additional Mahila Court, Tirunelveli tried the revision
petitioner/accused and found him guilty for offences under Section 498-A IPC
and Section 4 of D.P. Act. Accused was sentenced to undergo 2 years rigorous
imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo 2 months
simple imprisonment under Section 498-A IPC and also sentenced to undergo 2
years rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to
undergo 2 months simple imprisonment under Section 4 of D.P. Act. The period
of sentence was ordered to run concurrently.

3.On appeal, the Third Additional District and Sessions Judge,
Tirunelveli, confirmed the conviction, but modified the sentence to the
effect that the revision petitioner was sentenced to undergo 6 months
rigorous imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo
2 months simple imprisonment under Section 498-A IPC and also sentenced to
undergo 6 months rigorous imprisonment and to pay a fine of Rs.5,000/-, in
default, to undergo 2 months simple imprisonment under Section 4 of D.P. Act.
This revision petition is directed against the said Judgment of the Third
Additional District and Sessions Judge, Tirunelveli in C.A.No.84 of 2014.

4.The revision petitioner herein would canvass the following points:
The Courts below have failed to see that for the alleged demand of
dowry and harassment, there is no evidence except the statements of P.W.1,
P.W.2 and P.W.3, who are wife, father-in-law and mother-in-law of the
revision petitioner. All these witnesses are interested witnesses and had
animosity against the revision petitioner and to wreck vengeance against him,
had deposed falsely. Independent witnesses P.W.5, P.W.6 and P.W.7 have not
corroborated the version of P.W.1, P.W.2 and P.W.3. Even the evidence of
P.W.1 is not corroborated by her own father (P.W.2) and mother (P.W.3). The
embellishment and exaggeration in the depositions of P.W.2 and P.W.3, quite
contrary to the evidence of P.W.1, have failed to weight the minds of the
Courts below. Though the prosecution contend that during the subsistence of
marriage from 1988 to 2003, there were several demands of dowry, not even a
piece of evidence, is placed before the Court. The alleged harassment of
forcing P.W.2 to take up job at various places for want of money, is not
proved through any document. The matrimonial bond between the revision
petitioner and P.W.1 had severed by decree of dissolution of marriage.
Thereafter, with sole intention to spoil the career of the accused, alleging
falsity, P.W.1 has filed the complaint and the Courts below have erroneously
believed her version and convicted the revision petitioner/ accused. As a
consequence, the revision petitioner herein has been removed from service.
Pointing out that the prosecution has failed to produce the letter alleged to
have been written demanding Rs.2,000/- for buying steel bureau, the medical
certificate from Dr.Muthiah, who alleged to have treated P.W.1 for hearing
impairment caused by the revision petitioner and several schools in which
P.W.1 alleged to have worked at the instance of the revision petitioner.

5.Per contra, the learned counsel appearing for the revision petitioner
would submit that on facts the Courts below have holistically considered the
evidence of P.W.1 to P.W.8 and Ex.P.1 to Ex.P.4. After appreciating the
evidence, the Courts below have arrived at a right conclusion that ever since
the marriage tookplace between the revision petitioner and P.W.1 on
26.06.1998, there was frequent demand of dowry from the revision petitioner.
At the time of marriage, the parents of P.W.1 have given 50 sovereigns of
gold jewels and Rs.1,50,000/- cash, as dowry. For setting up separate
marital home at Chennai, they have paid Rs.10,000/- on demand of the revision
petitioner. Thereafter, he has forced P.W.1 to take up job as teacher and to
take tuition to augur income. The entire income of P.W.1 has been taken away
by the revision petitioner. In the year 1998, during the month of July, the
revision petitioner has demanded another sum of Rs.20,000/- as additional
dowry. To treat P.W.1 for her infertilisation, he has received Rs.50,000/-
in the year 2002. Besides he has assaulted P.W.1 on her ear, causing
bleeding injury for which she was treated by Dr.Muthiah. These facts are
spoken by P.W.1 herself in the witness box and corroborated by her parents.

6.The documents pertaining to these events, according to the witnesses,
were handed over to the police during investigation. Therefore, the
deposition of P.W.1 being substantially corroborated by P.W.2 and P.W.3,
though there are some embellishment, will not wash away the entire
prosecution case. The ingredients of harassment for demand of dowry and
acceptance of dowry are substantially proved through the evidence of P.W.1 to
P.W.3. Though, P.W.4, P.W.5 and P.W.6 have turned hostile, the evidence of
P.W.1 to P.W.3, who are the victims of dowry harassment, is sufficient to
convict the revision petitioner/accused, since the allegations have
takenplace in closed door and only P.W.1, P.W.2 and P.W.3 would have direct
proximity to the events.

7.Point for consideration:

?Whether the Judgments of the Courts below require interference of this
Court under its revisional jurisdiction??

8.P.W.7, Mariyaronickam, has deposed that on 11.04.2005, he received
the complaint of Valli from the Magistrate and registered the case in Crime
No.10 of 2005 for offence under Section 498-A IPC and Section 4 of Dowry
Prohibition Act, recorded the statement of Valli (P.W.1), Ponnaiya Pillai
(P.W.2), Shanthi (P.W.5) and Sulochana (P.W.6) and thereafter, submitted the
case diary to the Assistant Commissioner of Police, Palayamkottai for further
investigation, who has completed the investigation and filed the final report
on 19.11.2015. Through this witness, the First Information Report registered
by him, is marked as Ex.P.2.

9.P.W.8, who has completed investigation and filed the final report,
has corroborated the evidence of P.W.7. In the cross-examination, he has
admitted that based on the complaint given by P.W.1 on 25.11.2003, Receipt
No.487/2003, marked as Ex.P.4, was issued, in which on enquiry, Ramaiah
(P.W.2) has stated that the accused and his family members harassed his
daughter and later compromise entered between them. He admits in the cross-
examination that he has not secured any documents to show P.W.1 was worked at
various schools at Chennai. From this evidence, it is clear that prima facie
case to try the accused has been made out during the investigation, which has
led to the trial of the revision petitioner/accused. The independent
witnesses have turned hostile. More particularly, P.W.4, Ramaiah has not
spoken about the mediation took place between the petitioner and P.W.1.

10.The incriminating evidence against the revision petitioner is the
evidence of P.W.1, P.W.2 and P.W.3. P.W.1 Valli, is the directly affected
party whereas P.W.2 and P.W.3, Ponnaiya Pillai and Paripooranam are her
father and mother respectively. The matrimonial relationship commenced in
the year 1998, has seen many ups and downs. Finally broke on 23.11.2003,
when P.W.1 was driven out from the matrimonial home. Thereafter, P.W.1 has
filed divorce petition before the Sub Court, Tuticorin in H.M.O.P.No.150 of
2003. When her divorce petition was pending, it is alleged that on
23.06.2004, the revision petitioner and his mother Velammal came to her
house, threatened her with dire consequences, if she does not withdraw her
divorce petition. Thereafter, she has approached the learned Judicial
Magistrate and filed a complaint, marked as Ex.P.1, which has been forwarded
to the police for investigation. As deposed by P.W.7 that the complaint
forwarded by the learned Judicial Magistrate, has been registered,
investigated and final report has been filed by P.W.8. In the course of
chief-examination of P.W.1, she has taken adjournment on 20.06.2007 to file
certain documents in her favour. Recording it, the matter was adjourned for
further examination. Thereafter, P.W.1 has been cross-examined only on
14.12.2002. Except Ex.P.1, the complaint, no other document has been marked
through her.

11.A comparative reading of the deposition of P.W.1 and the depositions
of P.W.2 and P.W.3, would clearly show that the gradual embellishment in
their allegations, but to none of these allegations, there is corroborative
evidence or material evidence. The evidence of P.W.2 and P.W.3 are mostly of
hearsay in nature, particularly to emphasis torture and harassment, P.W.2,
the father of P.W.1 would say that during Kanda Shasti festival, instead of
dipping P.W.1, three or four times in the sea, the revision petitioner dipped
her fifteen times and on hearing the alarm of P.W.1, he went and rescued her.
Whereas P.W.1 has nowhere stated about this, in her complaint or deposition.
Likewise, the allegation of throwing match sticks on P.W.1 is spoken for the
first time through P.W.2 and P.W.3, but not corroborated by P.W.1.
Similarly, when there is a specific allegation against the revision
petitioner that he forced P.W.1 to change her employment from one school to
another to make more money, atleast some documents from those schools could
have been produced by the respondent.

12.Both the Courts below had relied upon the evidence of P.W.2 and
P.W.3 to convict the accused. The Courts below have miserably failed to test
the veracity of these witnesses. P.W.4 to P.W.6, the neighbours and friends
of the de facto complainant’s family, could have been the best witnesses for
the prosecution. They have turned hostile and there is not even iota of
corroboration to indicate the matrimonial discard between the revision
petitioner and P.W.1 was due to harassment or dowry demand.

13.It is unsafe to convict the revision petitioner solely based on the
evidence of P.W.1, P.W.2 and P.W.3, who have already developed animosity
against the revision petitioner and severed the bond by obtaining divorce.
Atleast some of the allegations made in the complaint could have been
substantiated through documentary evidence. For example, P.W.1 has deposed
that on 04.06.2000, she wrote a letter to her father to buy a bureau.
Accordingly, her father gave Rs.2,000/-. The said letter has not seen the
light of the day. She has deposed that the mother of the revision petitioner
instigated the revision petitioner to demand Rs.2,000/- per month from her
father. Therefore, the accused has written a letter to her father demanding
Rs.2,000/- per month. In her deposition, she has said that this letter was
given to Inspector of Police, but which Inspector and when it was given, have
not been stated in her evidence. Similarly, she says that Rs.50,000/- was
paid by her father for her treatment. No bill or name of hospital, are
mentioned in her evidence. She has deposed that the revision petitioner
assaulted her on her left ear. Dr.Muthiah of Tirunelveli treated her. No
document is filed to substantiate this allegations. Thus, even minimum
document which could have been in the possession of P.W.1 to substantiate the
case of P.W.1, has not been produced. In the said circumstances, solely
relying upon the evidence of P.W.1, P.W.2 and P.W.3, which are self-
contradictory to each other, the conviction of the Trial Court and confirming
of the same by the first appellate Court, is totally perverse.

14.Therefore, this Court has no hesitation to set aside the conviction
passed by the learned Judicial Magistrate, Additional Mahila Court,
Tirunelveli, in C.C.No.313 of 2013 and confirmed by the learned Third
Additional District and Sessions Judge, Tirunelveli in C.A.No.84 of 2014.

15.In the result, this Criminal Revision Case is allowed and the
conviction and sentence passed in passed in Calendar Case No.313 of 2013 by
the learned Judicial Magistrate, Additional Mahila Court, Tiruenlveli,
modified in Criminal Appeal No.84 of 2014 by the learned Third Additional
District and Sessions Judge, Tirunelveli are set aside. The revision
petitioner/accused is acquitted. Bail bond if any executed by him, shall
stand cancelled and fine amount, if any, paid by him is ordered to be
refunded forthwith.

To

1.The Third Additional District and Sessions Judge,
Tirunelveli, Tirunelveli District.

2.The Judicial Magistrate,
Additional Mahila Court,
Tirunelveli, Tirunelveli District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

4.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.

.

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