IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1460 of 2002 Palaniammal ... Appellant Vs. 1. Pachaiappan 2. Muniammal 3. Munian 4. Kuppan 5. Jadayan 6. Military Annamalai ... Respondents This Criminal Appeal has been filed under Section 378(4) of the Criminal Procedure Code to set aside the Order of acquittal made by the learned Judicial Magistrate No.1, Dharmapuri dated 15.04.1997 made in C.C.No.120/92. For Appellant : Mr.J.Saravanavel For Respondents : Mr.M.Selvam / M.Murthy JUDGMENT
This Criminal Appeal filed under Section 378 of Criminal Procedure Code with the leave of the court is directed against the judgment and order of acquittal dated 15.04.1997 made by the learned Judicial Magistrate No.1, Dharmapuri in C.C.No.120/1992 on the file of the trial court acquitting the first and second respondents herein/Accused 1 and 2 in respect of an offence punishable under Section 494 IPC and acquitting the respondents 3 to 6 herein/Accused No.3 to 6 in respect of an offence punishable under Section 494 read with Section 109 IPC for which they were tried before the trial court.
2. The facts leading to the filing of the present appeal can be briefly stated thus:-
The appellant Palaniammal is the legally wedded wife of the first respondent/first accused – Pachiappan. The 3rd respondent Munian is the father of the second respondent Muniammal. 4th respondent Kuppan and 5th respondent Jadayan are the sons of the 3rd respondent and elder brothers of the second respondent. The appellant and the respondents 1 to 5 are residents of Chekodi village, Palacode Taluk, Dharmapuri District. The 6th respondent is a resident of Pachampatti Kottai, Dharmapuri District. Out of the lawful wedlock, the appellant and the first respondent got two sons and one daughter. While so, on 18.09.1992, the appellant herein preferred a private complaint under Section 200 on the file of the Judicial Magistrate No.1, Dharmapuri accusing the first and second respondents of having committed an offence of bigamy punishable under Sections 494 IPC and accusing respondents 3 to 6 for having committed an offence of abetment of commission of the offence of
bigamy punishable under Section 494 read with Section 109 IPC.
3. According to the averments made in the complaint, the first respondent (Accused No.1) had been ill treating the appellant/complainant, as the appellant did not give her consent for the second marriage of the first respondent/ first accused as demanded by him. At the end of Tamil month Aani in 1992, when the appellant/complainant came to know that the first respondent/first accused was trying to marry the second respondent/second accused, she gave a telegraphic notice through her advocate on 10.07.1992 to the respondents 1 to 5/accused 1 to 5. Though the first respondent/first accused received the said telegraphic notice, respondents 2 to 5 refused to receive the same. Under the said circumstances, the first respondent/first accused had to postpone his proposed marriage with the second respondent/second accused. But, as usual he continued to harass the appellant and treat her with cruelty coercing her to affix her signature in a document titled as Marriage Release Deed. However, the appellant/ complainant refused to do so. On 09.09.2002 at about 6.00 AM, the respondents 1 to 6/Accused 1 to 6 had arranged the marriage of the first respondent/first accused with the second respondent/second accused at Arulmigu Mariamman Temple situated in between Chekodi village and Pachampatti Kottai village. On receipt of the information, the appellant/complainant (PW1) along with her son (PW2) and one Kaliappan (PW3) went to the venue and protested against the marriage. Despite their protest the marriage ceremony went on and the first respondent/first accused married the second respondent/ second accused by tying a “thali” around her neck. The other accused, namely respondents 3 to 6/accused 3 to 6, actively assisted the performance of the marriage between the respondents 1 and 2/accused 1 and 2 by putting the “Atchathai” on them. Within 2 days thereafter, the respondents 1 and 2/accused 1 and 2 came to the matrimonial home in which the appellant and the first respondent had been living ever since their marriage that took place 23 years back and tried to console the appellant stating that she, along with second respondent, could live under the same roof as wives of the first respondent/first accused. As she declined the said offer, she was beaten and driven out. Therefore, the appellant/complainant was constrained to prefer the above said private complaint against the respondents 1 to 6/accused 1 to 6 praying that they should be prosecuted for the aforementioned offences and punished suitably.
4. The learned Judicial Magistrate No.1, Dharmapuri, on receipt of the said complaint in writing, recorded the sworn statement of the appellant/complainant, took it on file as C.C.No.120/1992 and issued process to the respondents/accused under Section 204 Criminal Procedure Code. On appearance, the respondents/accused were questioned regarding the accusations made against them by the appellant/complainant. As they denied the allegations, a charge under Section 494 IPC against the first and 2nd respondents/first and second accused and a charge under Section 394 R/w 109 IPC against the other respondents, namely respondents 3 to 6, were framed. After having the charges read over and explained, all the respondents/accused 1 to 6 pleaded not guilty. Hence they were tried for the above said offences.
5. In order to substantiate her case against the accused, the appellant/complainant besides examining herself as PW1, examined her son Periya Paiyan (bghpa igad;) as PW2 and one Kaliappan as PW3. No document was marked and no material object was produced. After the completion of the evidence for the prosecution (on the side of the complainant), the respondents herein/accused were questioned under Section 313(1)(b) regarding the incriminating parts of the evidence adduced on the side of the complainant. They denied them as false and once again reiterated that they were innocent and not guilty. One Perumal was examined as the sole defence witness DW1. No document was marked and no material object was produced on the side of the accused.
6. After hearing the arguments advanced on either side, the learned Judicial Magistrate No.1, Dharmapuri considered the evidence and came to the conclusion that none of the charges framed against the respondents herein/accused was proved beyond reasonable doubt and accordingly acquitted them by judgment dated 15.04.1997. Aggrieved by and challenging the same, the appellant herein/complainant has preferred this appeal with the special leave of the court under Section 378(4) on various grounds set out in the Memorandum of appeal.
7. Mr.P.V.Bakthavatchalam, learned counsel advancing arguments on behalf of the appellant, contended that the judgment and order of acquittal of the court below was contrary to law and contrary to the evidence on record; that the failure to believe and rely on the evidence of PW1 to PW3 was perverse and the same resulted in miscarriage of justice; that the court below failed to note that the first respondent/first accused married the second respondent/second accused since the appellant/ complainant refused to part with the land purchased by the first respondent/first accused in her name in favour of the first accused; that the court below should have believed the testimonies of PW1 to PW3 that all the three went to the temple at the time of marriage and despite their protest, the marriage ceremony went on and that the court below committed an error in dismissing the complaint stating that no independent witness was examined to give testimony regarding the performance of marriage. Contending further the learned counsel submitted that the observation made by the trial court that the failure on the part of PW1 and PW2 to inform their neighbours of the second marriage of the first respondent/first accused with the second respondent/ second accused shall be a valid ground to disbelieve their evidence was not a sound one as the said court did not take into consideration the fact that the appellant/ complainant felt shy to inform the neighbours that her husband had married a second wife after 27 years of married life he had with the appellant/complainant. That the order of acquittal passed by the learned Judicial Magistrate was unsustainable and that hence the same should be set aside and the respondents 1 and 2/accused 1 and 2 and respondents 3 to 6/accused 3 to 6 should be convicted and punished for the offences under Section 494 and Section 494 read with Section 109 IPC respectively.
8. Per contra, Mr.M.Selvam, learned counsel for the respondents, contended that on an appreciation of evidence the court below had rightly come to a conclusion that the appellant/complainant was not able to prove the charges against the respondents/accused beyond reasonable doubt and that there was no scope, whatsoever, to interfere with the same.
9. This court gave its anxious consideration to the rival submissions made by the learned counsel on either side. The materials available on record were also perused.
10. The complainant who proved to be unsuccessful in getting her husband and others convicted for alleged offences under Section 494 IPC and Section 494 read with Section 109 IPC based on the allegation that during the subsistence of her marriage with her husband (first respondent), he married the second respondent and the respondents 3 to 6 abetted the commission of the offence of bigamy by aiding them to get married, has brought-forth this appeal after obtaining special leave from this court under Section 378(4) of Criminal Procedure Code.
11. It is not in dispute that the appellant/complainant is the legally wedded wife of the first respondent/first accused; that their marriage took place 27 years prior to the date of complaint and that out of the wedlock they got two sons and one daughter. It is also not in dispute that the marriage between the appellant and the first respondent still subsists. According to the appellant/complainant, during the subsistence of their marriage, the first respondent/first accused married the second respondent on 09.09.1992 and thus both of them committed an offence punishable under Section 494 IPC. Her further contention is that respondents 3 to 6 acted in aid of respondents 1 and 2 in performing their bigamous marriage and thus they were liable to be prosecuted and punished for an offence punishable under Section 494 read with Section 109 IPC.
12. The defence plea made by the respondents is one of total denial of the factum of the alleged second marriage. When such is the case, the prosecutrix, namely the appellant/complainant should have adduced reliable and sufficient evidence to prove the charges against the respondents/accused beyond reasonable doubt. In this case, the complainant examined herself as PW1, her son as PW2 and one Kaliappan as PW3. Though she would have stated in her complaint that prior to the alleged marriage constituting the occurrence she issued a telegraphic lawyer’s notice, she has not produced either a copy of the telegraphic notice or a receipt evidencing the issue of such a telegraphic notice. Nor was any certificate issued by the Postal Department produced to show the service of such a telegraphic notice on the first respondent/first accused.
13. The appellant/complainant, in paragraph 3 of her complaint, has stated that on receipt of information that the marriage of the first respondent with the second respondent was going to take place on 09.09.1992 at Arulmigu Mariamman Temple situated in between Chekodi Village and Pachampatti Kottai village she went there along with witnesses at 6.00 PM on 09.09.1992 and saw the respondents 1 and 2 with garlands and dressed like bride and bride groom. According to the averments found in the complaint she received the information that the said marriage was going to take place at the said temple and then only she went to that temple along with the witnesses to prevent the marriage. But the evidences adduced on the side of the complainant through PW1 to PW3 are contra to what is found in the complaint. PW1 in her evidence has stated that on the date of occurrence itself, the first respondent declared in front of PW1 to PW3 that he was going to marry the second respondent and after making such an announcement he took bath, wore a new dhoti and went to the temple. It is her further evidence that 30 minutes after his departure from home, she along with PW2 and PW3 went to the said temple. Evidence of PW2 and PW3 also are to the same effect. The learned Judicial Magistrate No.1, Dharmapuri has rightly pointed out the shift in the stand made by the appellant/complainant during trial between the complaint and evidence as to under what circumstances she along with PW2 and PW3 went to the place of alleged occurrence.
14. Apart from the above said material contradiction, the learned Judicial Magistrate has also pointed out other circumstances which make the evidence of PW1 to PW3 unbelievable. According to PW1’s evidence when she approached the villagers to come along with her to prevent the marriage, no one preferred to respond her call. On the other hand, her own son PW2 would say that they did not ask any of the villagers to accompany them. More specifically, he answered during the cross-examination that none of the elders of the village was informed and not even the neighbours were informed. While giving an account of the temple, PW1 would say that the temple consisted of a raised platform and the stone installed therein as the deity. Her evidence suggests that there was no superstructure and a stone alone had been installed on the raised platform as deity. Similar was the evidence of PW2. On the other hand, PW3 would state that there was a thatched shed in which two statues had been installed. The said evidence is quite contra to the evidence of PW1. PW3 also asserted that there was no building. The said contradictions found in the evidence of PW1 to PW3 were pointed out by the learned Judicial Magistrate in support of his conclusion that they could not have gone to the temple at the time of alleged performance of marriage between the first and second respondents/first and second accused. PW1 would admit that the said temple was newly created temple; that there was no statues in the temple; that on a raised platform three stones had been planted as deities and that there was no structure put up over the same. She would also state that she was not aware whether there was any poojari to the temple. On the other hand PW2 would say that there was a platform over which a thatched shed had been put up and a stone as well as a dagger (nty;) had been planted therein. On the other hand, PW3 would say that there were two statues and a dagger behind the stones and that there was also a thatched shed. In this regard, it is quite obvious that the evidence of PW1 to PW3 differ from each other which would show that they could not have gone to the place of alleged occurrence. At least, the said discrepancies found in the evidence of PW1 to PW3 will create a serious doubt on their veracity and on the occurrence alleged by the appellant/complainant.
15. On the other hand, one Perumal appeared as DW1 and deposed in clear terms that he was the priest (Poojari) of Mariamman Temple situated in between Chekodi village and Pachampatti Kottai village; that the said temple consisted of a terraced structure with a measurement of 10′ x 10′; that his house situated at a distance of 15′ from the said temple and that no marriage used to be performed in the said temple. PW1 did not deny that DW1 was the poojari of the temple, but pleaded ignorance regarding the same. All these discrepancies were pointed out by the learned Judicial Magistrate in support of his conclusion that the evidence of PW1 to PW3 as if they witnessed the alleged occurrence, namely the marriage of the first and second respondents on 09.09.1992 at 6.00 PM at the above said Mariamman Temple, could not be believed.
16. PW2 is none other than the son of PW1, the complainant. Admittedly, PW3 is a close relative of the complainant. The discrepancies pointed out by the court below found in the evidence of PW1 to PW3 regarding the circumstances under which they went to the place of occurrence and the description of the place of occurrence (temple), are enough to raise a reasonable suspicion regarding the version of the prosecution (complainant). Admittedly, there was a dispute between the complainant (PW1) and her husband (the first respondent) regarding a property standing in the name of the complainant. PW1 would state that she herself had purchased the property, whereas PW2 would say that the same was settled by the first respondent on the complainant (PW1). Let it be as it may, the fact that there is a dispute regarding the ownership of the property between the complainant and her husband (first respondent) and that the complainant has filed a suit to establish her title has been admitted. Under these circumstances, the court below, properly marshaling the evidence, has arrived at a correct conclusion that the complainant has not proved beyond reasonable doubt that the first respondent married the second respondent on 09.09.1992 and thus both respondents 1 and 2 committed an offence of bigamy punishable under Section 494 IPC and that the respondents 3 to 6 abetted the commission of the said offence by Respondents 1 and 2 by aiding them to get married and thus committed an offence punishable under Section 494 read with Section 109 IPC. The said finding of the court below cannot be termed either inform or defective warranting interference in this appeal. There is no scope, whatsoever, to interfere with the well considered finding of the trial court.
17. The court below has rightly concluded that none of the charges against the respondents herein/accused had been proved beyond reasonable doubt and that the respondents herein were entitled to be acquitted of the offences with which they stood charged. The judgment and order of acquittal passed by the learned Judicial Magistrate No.1, Dharmapuri does not suffer from any defect, discrepancy, infirmity or illegality and the same has got to be confirmed. There is no merit in the appeal and the same deserves to be dismissed. Accordingly this appeal is dismissed.
asr
To
The Judicial Magistrate No.1,
Dharmapuri