BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.09.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1439 and 1440 of 2005 Selvamuthukani @ Selvamuthu ... Petitioner in both the Crl.RCs. Vs. 1) Kannan ... Respondent in
Crl.R.C.No.1439
of 2005
2) Rangan Chettiar
3) Murugayee
4) K.Palaniammal
5) Ganesan Chettiar … Respondents in
Crl.R.C.No.1440
of 2005
These Criminal Revision Cases have been filed under Section 397 read with 401 of Criminal Procedure Code against a judgment of the lower appellate court namely, the Additional District and Sessions Judge, Fast Track Court No.III dated 29.07.2005 made in Criminal Appeals Nos.146 of 2004 and 147 of 2004.
For Appellants : Mr.K.Chenthil Kumar
For Respondents : Mr.S.N.Narasimhulu
COMMON ORDER
These criminal revision cases have been filed against the common judgment of the lower appellate court namely, the Additional District and Sessions Judge, Fast Track Court No.III dated 29.07.2005 made in Criminal Appeals 146 of 2004 and 147 of 2004.
2. Selvamuthukani @ Selvamuthu, the petitioner in both the criminal revision cases had preferred a private complaint on the file of the learned Judicial Magistrate No.1, Coimbatore alleging commission of an offence punishable under Section 494 IPC by the respondent in Crl.R.C.No.1439 of 2005 and an offence punishable under Section 494 read with 109 IPC by the respondents 1 to 4 in Crl.R.C.No.1440 of 2005. Following to proceed for taking cognizance of offences on private complaint the said complaint was taken on file by the learned Judicial Magistrate No.1, Coimbatore as C.C.No.620 of 1992. The respondent in Crl.R.C.No.1439 of 2005 had been arraigned as accused No.1 and the respondents 1 to 4 in Crl.R.C.No.1440 of 2005 had been arraigned as accused Nos.2 to 5 in the said calendar case.
3. As the accused denied having committed the offences alleged against one of them, the case was tried in trial court, in which the petitioner in these criminal revision cases (complainant) was examined as P.W.1 and two other witnesses namely, Angudurai and Kuppu Sornambigai were examined as P.W.2 and P.W.3. As many as four documents were marked as Ex.P1 to Ex.P4 on the side of the complainant.
4. After the evidence for the prosecution (complainant) was over, the incriminating materials found in the evidence adduced on the side of the complainant were pointed out and the accused persons (respondents in these criminal revision cases) were questioned under Section 313(i)(b) of the Code of Criminal Procedure. They denied the same as false. On the side of the accused persons/the respondents in these criminal revision cases, two witnesses were examined as D.W.1 and D.W.2 and Ex.B1 and Ex.B2 were also marked.
5. At the conclusion of trial, after hearing the arguments advanced on either side and upon considering the evidence in the light of such arguments, the learned Judicial Magistrate No.1, Coimbatore came to the conclusion that the charge under Section 494 as against the first accused (respondent in Crl.R.C.No.1439 of 2005) and the charge under Section 494 read with 109 IPC as against the accused Nos.2 to 5 (respondents 1 to 4 in Crl.R.C.No.1440 of 2005) had been proved beyond reasonable doubt. Based on the said finding, the learned Judicial Magistrate No.1 held all the accused guilty of the offences with which they stood charged as indicated above and convicted them of the said offences. After hearing the submissions made by the accused persons regarding the sentence to be imposed, the learned Judicial Magistrate sentenced each one of the accused persons to undergo rigorous imprisonment for a period of two years and pay a sum of Rs.1,000/-. The learned Judicial Magistrate No.1 also ordered that in case of default in payment of fine, the accused persons should undergo a rigorous imprisonment for a further period of one month.
6. Aggrieved by and challenging the said judgment of conviction dated 03.03.2004 and the sentence imposed thereon, the first accused preferred an appeal in Criminal Appeal No.147 of 2004 and the accused Nos.2 to 5 preferred an appeal in Crl.A.No.146 of 2004 before the learned Principal District and Sessions Judge, Coimbatore. The said appeals were made over by the Principal Sessions Judge to the District and Sessions Judge, Fast Track Court No.III, Coimbatore for disposal according to law. After hearing, the learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore, by common judgment pronounced in the said criminal appeals 146 of 2004 and 147 of 2004, confirmed the conviction. However, regarding the sentence, the lower appellate judge showed leniency by confirming the fine and modifying the substantive sentence of imprisonment to one of the period of imprisonment already undergone.
7. As against the said common judgment of the lower appellate court reducing the sentence, the complainant has preferred these criminal revision cases on the grounds set out in the memoranda of criminal revision cases.
8. This court heard the submissions of Mr.K.Chenthil Kumar, learned counsel appearing on behalf of the petitioner and Mr.S.N.Narasimhulu, learned counsel appearing on behalf of the respondents. The materials available on record were also perused.
9. The complainant before the Trial court is the petitioner in these revision cases. It is a fact not in dispute that Selvamuthukani @ Selvamuthu, petitioner in both the Criminal Revision Cases, is the legally wedded wife of the first accused (respondent in criminal revision case No.1439 of 2005); that the accused had filed a case for dissolution of marriage under Section 13(1)(i) of the Hindu Marriage Act, 1955 in HMOP No.53 of 1986 on the file of the Additional Subordinate Judge, Salem in which the relief of dissolution of marriage was granted by the said court by its judgment dated 20.02.1991; that the said decree of divorce passed by the Additional Subordinate Judge was challenged in an appeal before the District Court, Salem in C.M.A.No.44 of 1991 and that the said appeal was allowed setting aside the decree of divorce passed by the Additional Subordinate Judge and consequently the HMOP preferred by the first accused (respondent in Crl.R.C.No.1439 of 2005) was dismissed.
10. The specific case of the petitioner in the revision cases is that after the pronouncement of the judgment in CMA 44 of 1991 setting aside the decree of divorce and dismissing the HMOP filed by the first accused, the relationship of husband and wife between the first accused and the complainant continued to exist and that during the subsistence of the said marital relationship between them, the accused No.1 married accused No.4 and thus accused No.1 committed an offence of bigamy punishable under Section 494 IPC. The further contention of the complainant/petitioner happened to be that the other accused persons namely, accused Nos.2 to 5 (respondents in Crl.R.C.No.1440 of 2005) abetted the commission of the said offence by the first accused and thus they are all guilty of an offence punishable under Section 494 IPC read with Section 109 IPC.
11. In addition to the oral evidence of the complainant who was examined as P.W.1, two more witnesses were examined as P.W.2 and P.W.3 to corroborate the testimony of P.W.1. The fact that the first accused married the 4th accused on 08.03.1992 and the other accused persons abetted him to do so, has been clearly spoken to by the above said witnesses examined on the side of the complainant. The complainant has also produced Ex.P1 to P4. Ex.P1 is the birth certificate showing the birth of a male child to the 4th accused through the first accused on 09.04.1993. A copy of the application submitted to the school for admitting the said child is Ex.P3. It bears the signature of the first accused. It is obvious from the same the name of the child is K.Rajagopal. Ex.P2 is the copy of an application made to the school for admitting the second child, K.Suresh born on 26.12.1994. A copy of the birth certificate produced along with the said application has also been produced. Copy of the admission register has been produced as Ex.P4. All these documents were considered and the trial court came to the conclusion that the said documentary evidence would clearly corroborate the parole evidence adduced on the side of the complainant that the first accused married the 4th accused on 08.03.1992 and that pursuant to the said marriage they started living as husband and wife as a result of which they had got two children by name K.Rajagopal and K.Suresh.
12. Though the witnesses examined on the side of the respondents as D.W.1 and D.W.2, in their testimonies, stated that it was not true that the first accused married the 4th accused on 08.03.1992 and that it was false to state that any child was born to them, the trial court chose to prefer the evidence of the P.W.1 to P.W.3 which stood corroborated by the documentary evidence Ex.P1 to Ex.P4, which not only show that two children were born to the 4th accused through the first accused but also the fact that while admitting one of the children in the school, the first accused himself signed the application for admission as the father of the child. It is true that the first accused came out successful in the HMOP filed before the Additional Subordinate Judge, Salem as evidenced by Ex.D1 and Ex.D2. But admittedly the said decree of divorce was successfully challenged before the District court in C.M.A.No.44 of 1991 whereupon the decree of divorce was set aside and the HMOP itself was dismissed by the judgment of the Principal District Judge, Salem on 10.02.1992. DW1 has admitted that the decree of divorce passed by the Additional Subordinate Judge was set aside in appeal by the District court in C.M.A.No.44 of 1991 on 10.02.1992. It is her further statement that because the said judgment in the CMA was pronounced on 10.02.1992, fearing that the first accused would prefer a further appeal and in order to prevent him from preferring a further appeal, the complainant had preferred a false complaint as if the marriage between the the first and fourth accused took place on 08.03.1992. Besides the admission made by D.W.2 that the appeal filed by the complainant in C.M.A.No.44 of 1991 on the file of the District Court, Salem was allowed on 10.02.1992, the judgment and decree passed in the said CMA have also been produced before the trial court and the same are found along with the records of the trial court submitted for reference in these criminal revision cases. It is quite obvious that as on 08.03.1992 the marriage between the first and fourth accused was very much subsisting. The learned Judicial Magistrate had rightly arrived at a conclusion that the said act of the first accused marrying the fourth accused during the subsistence of the marriage with the complainant would clearly amount to an offence of bigamy punishable under Section 494 IPC. Based on the evidence adduced on the side of the complainant, the learned Judicial Magistrate had also arrived at a conclusion that the marriage between first and fourth accused was conducted with the active help of the accused Nos.2 to 5 and that hence accused Nos.2 to 5 were guilty of the offence punishable under Section 494 read with 109 IPC.
13. It is pertinent to note that though separate appeals were filed by the first accused and the other accused in C.A.Nos.147 of 2004 and 146 of 2004 respectively, the lower appellate court concurred with the finding of the trial court and confirmed the conviction recorded by the trial court in respect of all the accused persons. As against the same, none of the accused have chosen to prefer any appeal or revision. Therefore, the conviction recorded by the trial court which stands confirmed by the judgment of the lower appellate court has become final and the same has got to be recorded so.
14. The present revision cases have been filed by the complainant challenging the reduction of sentence made by the lower appellate court. Therefore, the short point that arises for consideration in both the criminal revision cases is, “whether the lower appellate court is right in reducing the substantive sentence of imprisonment to one already undergone from a fixed term of two years rigorous imprisonment?”
15. As already pointed out, the conviction recorded by the trial court which stands confirmed by the judgment of the lower appellate court has attained finality. The trial court imposed a sentence of 2 years rigorous imprisonment and a fine of Rs.1,000/- with a default sentence of one month rigorous imprisonment on each one of the accused persons for the offence punishable under Section 494 IPC in respect of the first accused and in respect of each one of the other accused persons for an offence punishable under Section 494 read with 109 IPC. But the lower appellate judge namely, learned Additional Sessions Judge, Fast Track Court No.III, Coimbatore took a lenient view and reduced the substantive sentence of imprisonment from two years rigorous imprisonment to one already undergone by the accused persons.
16. The learned counsel for the petitioner vehemently argued that the trial court itself had shown leniency in the matter of punishment by imposing a sentence of rigorous imprisonment for two years as against the maximum sentence of seven years imprisonment prescribed for such an offence; that as such the lower appellate court should not have interfered with the order of sentence passed by the trial court, that too without assigning any valid reason and that the reduction of sentence made by the appellate court is unsustainable because the same was made in ignorance of particulars as to what was the actual period of imprisonment undergone by the accused persons prior to the date of pronouncement of judgment in the appeals. The learned counsel for the petitioner also submitted the accused persons did not suffer any incarceration either before conviction as an under trial prisoner or after conviction pending disposal of the appeal and that the said fact was not adverted to by the learned lower appellate judge while reducing the substantive sentence into one of the period already undergone.
17. The learned counsel for the respondents/accused is not in a position to contradict the said submission made by the learned counsel for the petitioner that none of the accused persons did in fact suffer any incarceration to restrict the imprisonment to the period of imprisonment already undergone. Admittedly, the accused were not arrested and remanded during the pendency of the calendar case. The judgment of the trial court was delivered on 03.03.2004. It is seen from the committal warrant available on record that on the very same date the sentence was suspended and the accused were released on bail. It is also not disputed that during the pendency of the appeals also the accused did not serve any part of the sentence in jail and they were on bail throughout. Under the above said circumstances, this court comes to the conclusion that the contention of the learned counsel for the petitioner that the reduction of sentence made by the lower appellate court from two years rigorous imprisonment to one of the period already undergone cannot be sustained as the same was done without any application of mind.
18. The learned counsel for the respondents/accused would contend that even if the reduction of sentence made by the lower appellate court is to be held unsustainable, this court can take into consideration the relevant facts and show leniency in the matter of punishment and that for the said purpose, this court can also take into consideration the long pendency of the case. There is nothing on record to show that the delay in disposal of the case was attributable to any fault on the part of the complainant. The offence of bigamy under Section 494 is punishable with imprisonment of either description which may extend upto 7 years and with fine. However, considering the facts that more persons had been arrayed as accused persons in the complaint which led to the filing of Crl.OPs before the High court for quashing the complaint against them, this court is inclined to accept the said contention of the learned counsel for the respondents to some extent and accordingly it comes to the conclusion that the sentence of two years rigorous imprisonment awarded uniformly to all the accused persons by the trial court is slightly on the higher side and that interest of justice shall be subserved by reducing the said sentence. It is not the case of the respondents that the first accused married the 4th accused before the judgment in the C.M.A setting aside the divorce decree was passed. Their case is one of total denial. Therefore it is quite obvious that the marriage of the first accused with the 4th accused was solemnised soon after they came to know that the judgment in C.M.A. Had gone against the first accused. As the first accused is guilty of any offence under section 494 IPC and the other accused are guilty of abetting the same, this court is also of the view that the sentence to be imposed on the other accused persons namely, accused Nos.2 to 5 can be reduced to 50% of the substantive sentence to be awarded to the first accused. Accordingly, this court comes to the conclusion that the sentence awarded for the offence under Section 494 IPC to the first accused by the trial court shall stand reduced to one year rigorous imprisonment. So far as the accused Nos.2 to 5 are concerned, the sentence awarded by the trial court shall stand reduced to six months rigorous imprisonment. There shall be no change in the amount of fine and the default sentence.
19. In the result both the criminal revision cases are allowed and the order of the lower appellate court namely, Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore reducing the sentence of imprisonment to one already undergone is modified as follows:
(i) Substantive sentence awarded by the trial court to the first accused for the offence under Section 494 I.P.C. shall stand reduced to rigorous imprisonment for one year.
(ii) The substantive sentence awarded by the trial court to each one of the accused 2 to 5 for the offence under Section 494 read with 109 IPC shall stand reduced to rigorous imprisonment for six months.
(iii) There shall be no change in the amount of fine and the default sentence.
asr/
To
The Additional District and Sessions Judge,
Fast Track Court No.III,
Coimbatore