Allowed

Subramani v. Chandra

Madras HC11 Mar 2011CRL RC/1017/2008

Case brief

AI extract

What is this about?

The High Court quashed a Sessions Court order that set aside an acquittal and remanded the case for fresh disposal. The court held the revisional judge erred in permitting additional evidence not essential for justice and in interfering with the acquittal without recording such evidence or finding perversity in the trial court's findings. The acquittal was upheld.

What did the court decide?

The common order dated 29.05.2008 allowing additional evidence and setting aside acquittal was set aside; the trial court's acquittal was confirmed and the revision dismissed.

Subramani Vs Chandra — Dowry and Cruelty | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 11.03.2011

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CORAM

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THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

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Crl.R.C.No.1017 of 2008

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and M.P.No.1 of 2008

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1.Subramani
2.Rajammal
3.Sundarrajan
4.Easwari ... Petitioners/Accused 1 to 4

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1.Chandra

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2.The State represented by Sub-Inspector of Police Udumalpet All Women Police Station Coimbatore District Cr.No.6 of 2004

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... Respondents/PWI Complainant

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PRAYER: Criminal Revision Case filed under Sections 397 r/w 401 of Cr.P.C. to set aside the order of the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore made in CRP No. 78/2007 dated 29.05.2008 modifying the order of the learned Judicial Magistrate No.1, Udumalpet, dated 14.03.2007 made in C.C.No.386 of 2004.

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For Petitioners : Mr.R.John Sathyan For Respondent : Mr.K.Kalyanasundaram (for R1) Mr.I.Paul Nobel Devakumar (for R2) Govt. Advocate (Crl.Side)

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The petitioners 1 to 4 in the Criminal Revision Case were prosecuted before the learned Judicial Magistrate No.1, Udumalpet in C.C.No.386/2004 for alleged offences punishable under Sections 498-A I.P.C., 406 I.P.C. and Section 4 of the Dowry Prohibition Act. The trial ended in a judgment of acquittal dated 14.03.2007 and the petitioners herein were held not guilty of any one of the offences with which they stood charged.

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Aggrieved by and challenging the judgment of acquittal, the de-facto complainant, who was examined as P.W.1 in the trial court, preferred a Revision under Section 397 Cr.P.C before the Sessions Court, Coimbatore in Crl.R.P.No.78/2007. Along with the Revision Petition, she also filed a miscellaneous petition in Crl.M.P.No.363/2007 praying for an order permitting her to adduce additional evidence. She also produced six documents along with the said miscellaneous petition purporting to be the documentary evidence in proof of which oral evidence was also proposed to be adduced. The learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore, to whom the said Revision Petition was made over, passed a common order on 29.05.2008, allowing the said miscellaneous petition, namely Crl.M.P.No.363/2007 seeking permission to adduce additional evidence, setting aside the judgment of acquittal pronounced by the trial court and remanding the calendar case No.386/2004 to the trial court for fresh disposal, after taking additional evidence. The legality and propriety of the said common order dated 29.05.2008 is questioned by the present revision petitioners (A1 to A4) invoking the powers of the Revision of this court under Section 401 Cr.P.C.

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The arguments advanced by Mr.R.John Sathyan, learned counsel for the petitioners, by Mr.K.Kalyanasundaram, learned counsel for the first respondent/de-facto complainant and by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) on behalf of the second respondent (police) were heard. The materials available on record were also perused.

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Accused Nos.1 to 4 in C.C.No.386/2004 on the file of the learned Judicial Magistrate No.1, Udumalpet are the petitioners herein. The first petitioner is the husband of the first respondent herein, the de-facto complainant, who was examined as P.W.1 in the trial court. Based on her written complaint, marked as Ex.P1, a case was registered on the file of All Women Police Station, Udumalpet for alleged offences punishable under Sections 498-A I.P.C, 406 I.P.C. and Section 4 of the Dowry Prohibition Act in Cr.No.6/2004. The said case was registered against the first petitioner herein (A1) alone, since the entire allegations incorporated in the complaint had been made against him alone and there was no whisper about any act on the part of the other petitioners herein (A2 to A4), which would amount to a punishable offence.

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The gist of the allegations found in the complaint, is, as follows:-

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At the time of marriage of the de-facto complainant (P.W.1) with the first petitioner herein (A1), her parents gave her 27 sovereigns of gold jewels and household articles as customary seers. After marriage, they lived in the joint family, of which the petitioners 2 to 4 (A2 to A4) were also members, for a short period and thereafter, the first petitioner herein (A1) and his wife (P.W.1) set up a separate residence for them since there arose some problems between the first petitioner and his wife (P.W.1) on the one hand and the other petitioners (A2 to A4) on the other hand. Thereafter, the first petitioner got the jewels of the de-facto complainant (P.W.1) weighing 27 sovereigns in the guise of pledging them for purchasing a lorry. But the first petitioner herein (A1), after pledging the said jewels, failed to purchase a lorry, which made the de-facto complainant (P.W.1) to make a demand for the redemption of her jewels. At that juncture, the first petitioner herein (A1) drove her to her parents' house with a direction to get a sum of Rupees one lakh as dowry. Thereafter the de-facto complainant (P.W.1) preferred a complaint to the police seeking their help to get back her jewels. During the enquiry conducted by the police, the first petitioner herein (A1) undertook to redeem and give back the jewels of P.W.1 to her within a period of seven months. After giving such undertaking before the police, the first petitioner (A1) came to the residence of P.W.1’s father and created problems by questioning her as to how dare she could lodge a complaint when he had directed her to get a dowry of Rupees one lakh.

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Based on the above said allegations, the de-facto complainant (P.W.1) had prayed for action being taken against her husband for making a demand of dowry and also for his refusal to redeem and hand over her jewels. P.W.9 - Tmt.Manickam, Sub-Inspector of Police, All Women Police Station, Udumalpet, conducted an investigation and at the conclusion, submitted a final report alleging commission of offences under Sections 498-A I.P.C., 406 I.P.C. and Section 4 of the Dowry Prohibition Act on the part of the first petitioner herein (A1) alone. The said final report was taken on file by the learned Judicial Magistrate No.1, Udumalpet as C.C.No.386/2004 and necessary charges were framed against the first petitioner herein (A1). Since he pleaded not guilty, the case was tried.

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During the course of the trial, after the completion of examination of the de-facto complainant as P.W.1 in chief and before her cross-examination, a petition under Section 319 Cr.P.C. was filed on behalf of the prosecution and the same was taken on file as Crl.M.P.No.5946/2005. After enquiry, the said petition was allowed and the petitioners 2 to 4 herein were added and ranked as Accused Nos.2 to 4 in the above said calendar case. However, charges were framed against them for offences punishable under Sections 498-A IPC

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and 406 IPC alone and no charge was framed against them under Section 4 of the Dowry Prohibition Act. In the trial that continued thereafter, totally nine witnesses including P.W.1 (de-facto complainant) were examined as P.Ws.1 to 9 and three documents were marked as Ex.P1 to P3 on the side of prosecution.

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After the recording of evidence on the side of the prosecution was over, the accused (petitioners herein) were questioned under Section 313(1)(b) Cr.P.C regarding the incriminating materials found in the evidence adduced on the side of the prosecution and they denied them as false. No witness was examined on the side of the accused (petitioners herein). However, two documents were marked as Exs.D1 and D2 on their side.

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Evaluating the evidence brought on record before the trial court, the learned Judicial Magistrate No.1, Udumalpet came to the conclusion that none of the charges framed against the accused was proved and hence acquitted all the accused persons (petitioners 1 to 4 herein) by a judgment dated 14.03.2007. Under such circumstances alone, the first respondent herein/de-facto complainant (P.W.1) preferred the above referred Criminal Revision Petition No.78/2007 before the Sessions Court, Coimbatore challenging the acquittal and the Criminal Miscellaneous Petition in Crl.M.P.No.363/2007 for reception of additional evidence.

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The learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore, to whom the case was made over, after hearing, allowed the criminal miscellaneous petition as well as the criminal revision petition, set aside the acquittal and remanded the case back to the trial court for fresh disposal, after recording additional evidence sought to be adduced against the petitioners herein by the de-facto complainant (P.W.1) on behalf of the prosecution.

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It is the contention of the learned counsel for the petitioners that the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore committed a gross error and irregularity in setting aside the judgment of acquittal without even considering whether the finding of the trial court could be termed erroneous in the light of the evidence adduced before the trial court; that the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore committed an error in allowing the miscellaneous petition Crl.M.P.No.363/2007 for adducing additional evidence without the grounds for adducing additional evidence being established by the petitioner therein/de-facto complainant; that even

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if it is assumed that the permission for adducing additional evidence could be granted, that itself would not be enough to set aside the judgment of acquittal; that the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore himself ought to have recorded the additional evidence or caused the additional evidence to be recorded by the trial court and then considered the sustainability of the judgment of acquittal; that the failure to adopt such a procedure would vitiate the order of the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore and that the very procedure adopted by the first revision court is erroneous and against law.

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This court also heard the submissions made on behalf of the respondents in reply to the above said contentions made by the learned counsel for the petitioners and this court paid its anxious considerations to the same.

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Upon considering the submissions made on either side and after perusing the materials available on record, this court is of the considered view that the contentions raised on behalf of the petitioners herein are bound to be countenanced and they cannot be brushed aside as having no tenability. The learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore committed a couple of mistakes, which are obvious. First of all, the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore, failed to consider the circumstances in which and the grounds on which additional evidence could be allowed to be adduced on the side of the prosecution in the appellate or revisional stage. It is not the case of the first respondent herein/de-facto complainant that even though she wanted the Investigating Officer or the Assistant Public Prosecutor to produce in the trial the documents now sought to be produced as additional evidence, her request was turned town or that the existence of the said documents was not known to her when the trial was in progress until the trial was over. On the other hand, there are enough materials in the evidence adduced before the trial court which will go to show that the existence of the documents now sought to be produced as the additional evidence, was known not only to the first respondent herein/de-facto complainant, but also to the prosecuting agency. Oral evidence regarding those documents have been adduced before the trial court. It is obvious that the sole purpose sought to be achieved by the introduction of the additional evidence is to prove the charge of commission of an offence of criminal breach of trust punishable under Section 406 IPC. The learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore very much relied on the evidence adduced on the side of the prosecution to the effect that the jewels and other articles presented to the de-facto complainant (P.W.1) as

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customary seers, were handed over to P.W.1 on 15.07.2005, that is after the institution of the criminal case on police report, that too on the intervention of the Superintendent of Police pursuant to a petition presented on the Grievance Day. Out of six documents that are sought to be introduced as additional documentary evidence, the first three documents are intended to show that the jewels and sreedhan articles of the de-facto complainant (P.W.1) were recovered and handed over to her on 15.07.2005 based on the order of the Superintendent of Police directing the Inspector of Police to do so. The said documents include a receipt for the complaint, news item in the media (Dhina Thanthi news paper dated 18.06.2005) to show that Grievance Day was held and a copy of a letter addressed by the defacto complainant (P.W.1) to the Superintendent of Police expressing gratitude for the help rendered for retrieving her jewels and Sreedhan articles. All those documents came into existence much earlier than the date on which P.W.1's evidence before the trial court was concluded and much before the other witnesses were examined.

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It is also obvious from the order of the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore that the apparent discrepancies found in them were not noticed by the court of first revision. At one place, the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore has stated that the jewels and Sreedhan articles were handed over to the de-facto complainant (P.W.1) on 15.07.2005. But, two lines below the said observation, the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore has observed that in the thanks giving letter addressed to the Superintendent of Police, the date of retrieval of the jewels and handing over of the same to the de-facto complainant (P.W.1) was noted as 15.06.2005.

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The other three documents, which are sought to be produced as documents, are relating to the defence documents produced as Exs.D1 and D2. It is pertinent to note that Exs.D1 and D2 were produced and marked during cross-examination of P.W.1 before the trial court. Thereafter, there was more time during which the said documents could have been produced. No reason has been assigned for the failure to produce those documents at the earliest opportunity. In addition to that, it cannot be said that the documents sought to be produced as additional evidence are of such a nature that they would clinch the issue one way or the other. In fact, the facts sought to proved are not disputed. Sufficient evidence had already been adduced touching those facts. In view of the admitted factual matrix regarding the pledging of jewels, their redemption and delivery of those jewels and seer articles to the de-facto complainant (P.W.1), as rightly contended by the learned counsel for

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the petitioners herein, the above said documents now sought to be introduced as additional evidence are not capable of affecting the decision made by the trial court in this regard.

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The de-facto complainant (P.W.1) has sought permission to adduce additional evidence in order to prove the charge under Section 406 I.P.C alone. It is an admitted fact that the jewels of the defacto complainant (P.W.1) were pledged with the bank for raising funds with her consent. It is not the case of the de-facto complainant (P.W.1) that the amount borrowed by pledging the jewels was meant for her expenses and the same was used by the accused persons for their purpose. The grievance of the de-facto complainant (P.W.1) is that the jewels were pledged with the bank for purchasing a lorry in the name of her husband, namely the first petitioner herein, but the fund thus raised was spent on the other expenses of the joint family without purchasing a lorry. It is not her case that she was promised that the amount borrowed by pledging her jewels would be utilised for purchasing a lorry for her or that in any way she would be given dominion over the said amount. It is also not her case that the amount borrowed from the bank by pledging the jewels was to be held by the petitioners herein in trust for her. On the other hand, the jewels were admittedly handed over by the de-facto complainant (P.W.1) to the first petitioner herein for raising funds for himself and he did so by pledging the jewels with the bank. It is not the concern of the de-facto complainant (P.W.1) to monitor the spending of the amount raised by pledging the jewels. Her right is limited to seek redemption of her jewels and entrustment of the same to her.

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From the evidence available, it is clear that the jewels pledged by the first petitioner herein with the consent of his wife, namely P.W.1, were subsequently redeemed and handed over to her along with other Sreedhan articles belonging to her. There is absence of proof of either misappropriation or criminal breach of trust on the part of any one of the petitioners herein. There is also absence of allegation of cheating. Under such circumstances, it is abundantly clear that the documents sought to be introduced as additional evidence, even if approved, shall not be enough to show that the decision arrived at by the trial court is erroneous and unsustainable. It is not a case in which it can be said that the reception of additional evidence has become necessary to avoid miscarriage of justice or abuse of process of law. Therefore, this court comes to the conclusion that the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore has committed a grave error in law in allowing Crl.M.P.No.363/2007 and according permission to the de-facto complainant (P.W.1) to adduce additional evidence.

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The learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore committed the second error in setting aside the acquittal without even considering whether the finding of the trial court was defective or infirm. Even if it is assumed that Crl.M.P.No.363/2007 seeking permission to adduce additional evidence could be allowed, that itself shall not be enough to set aside the judgment of acquittal pronounced by the trial court. In such cases, either the revisional court conferred with the powers of a court of appeal by virtue of the provision found in Section 399 Cr.P.C r/w section 401 Cr.P.C. itself shall record the additional evidence or direct recording of such evidence by any court subordinate to it. Only after recording of such evidence by the court of revision or after receiving the report of the subordinate court along with the evidence recorded on the direction of the court of revision, the court of revision can make a decision either to interfere with or confirm the finding of the trial court in the light of the entire materials available on record, including the additional evidence recorded in the manner indicated above. In this regard, the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore has failed to follow the said procedure and hence the order of the said court setting aside the acquittal is unsustainable in law.

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If such a procedural flaw in the disposal of the criminal revision petition alone is found, it may be proper for this court to set aside the order of the learned judge of the first revision court and remit the criminal revision petition back to the said court to decide the same after strictly adhering to the procedure prescribed for recording additional evidence at the stage of appeal or revision. The said course can be adopted, provided the petition for reception of additional evidence can be allowed. We have already seen that the order of the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore allowing Crl.M.P.No.363/2007 for reception of additional evidence cannot withstand the scrutiny of this court; that the said order is liable to be set aside and that the said petition for reception of additional evidence deserves to be dismissed. Therefore remanding the criminal revision petition to the file of the Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore is not warranted in this case.

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Yet another aspect, a vital one in this case, requires to be highlighted. In Ex.P1-complaint, nothing has been mentioned about the petitioners 2 to 4 herein. The same was the reason why police registered a First Information Report only against the first petitioner herein. Even during the investigation, no material

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capable of implicating petitioners 2 to 4 herein (A2 to A4) could be collected by the Investigating Officer and hence a charge-sheet was filed against the first petitioner herein (A1) alone. Only when P.W.1 was in the witness box, the petitioners 2 to 4 herein were sought to be implicated by effecting improvements over the case projected under Ex.P1-complaint and the statement of P.W.1 recorded under Section 161(3) Cr.P.C. By such an improvement over the complaint and the 161 statement of P.W.1, she has tried to implicate the petitioners 2 to 4 herein for the offences punishable under Sections 498-A and 406 IPC by stating that she came to know that the jewels were pledged jointly by all the petitioners herein and that when she questioned the propriety of the said act of the petitioners, the petitioners 2 to 4 (A2 to A4) also ill-treated her with cruelty even by brandishing her. The joint pledge of the jewels is falsified by the evidence adduced through the bank official examined as P.W.8 on the side of the prosecution itself. Despite such an attempt made by the de-facto complainant (P.W.1) during the course of the trial, the petitioners herein were able to get acquitted of the offences with which they stood charged. The trial court, on proper appreciation of evidence, came to the conclusion, which cannot be termed either defective or infirm, much less perverse, that none of the charges framed against the petitioners herein/accused persons was proved beyond reasonable doubt.

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It is a settled proposition of law that the court hearing the revision in criminal cases should not venture to normally reappraise the evidence unless perversity of finding is pleaded and sought to be established. The court should also keep in mind the salutary principle of criminal jurisprudence that every accused shall be presumed to be innocent unless he is proved to be guilty and that the general presumption of innocence gets doubly strengthened by an order of acquittal; that strong grounds are needed to interfere with the order of acquittal; that in case the evidence is capable of admitting two inferences of equal strength, one in favour of the accused and the other in favour of the prosecution, the former alone should be preferred; that simply because other view is also possible and the court of the appeal/revision prefers such view, the order of acquittal should not be interfered with and that in such cases, the acquittal should be confirmed. The said proposition of law has been laid down in Chandrappa & Ors. vs. State of Karnataka reported in (2007) CCR 465 (SC), which was also followed by this court in The State rep. by the Deputy Superintendent of Police, Udhagamandalam vs. M.Asaithambi reported in (2009) 3 MLJ (Crl) 882.

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If the case on hand is considered in the light of the said celebrated principle of criminal jurisprudence, this court has to come to the only conclusion that the order of the learned Additional

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District and Sessions Judge (Fast Track Court No.3), Coimbaotre is unsustainable in law and liable to be set aside; that the criminal revision petition No.78/2007 on the file of the Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore and Crl.M.P.No.363/2007 deserve dismissal and that the acquittal of the petitioners herein (A1 to A4) by the trial court should be upheld.

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For all the reasons stated above, this court comes to the conclusion that the criminal revision case No.1017/2008 should be allowed and the common order of the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore dated 29.05.2008 should be set aside and consequently the acquittal of the petitioners herein/accused 1 to 4 by the trial court should be upheld.

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In the result, this criminal revision case is allowed. The common order of the the learned Additional District and Sessions Judge (Fast Track Court No.3), Coimbatore dated 29.05.2008 made in Crl.R.P.No.78 of 2007 and Crl.M.P.No.363 of 2007 is set aside. The order of the trial court dated 14.03.2007 made in C.C.No.386 of 2004, acquitting the petitioners herein (A1 to A4) is confirmed. Consequently, connected M.P.No.1 of 2008 is closed.

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Sd/
Assistant Registrar
/True Copy/
Sub Assistant Registrar
asr/
To
1.The Additional District and Sessions Judge,
(Fast Track Court No.3), Coimbatore

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