IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.400 of 2008 Vasanthakumari ... Petitioner Vs. 1.State by The Assistant Commissioner of Police Thirumangalam Police Limite J J Nagar Police Station Chennai Cr.No.1886 of 2005 2.Pugalendhi ... Respondents This Criminal Revision Case has been filed under Section 397 read with Section 401 of Criminal Procedure Code as against the order passed in S.C.No.546 of 2006 dated 28.05.2007 on the file of the learned Sessions Judge, (Fast Track Court No.III), Poonamallee acquitting the 2nd respondent in the above said case and prays for setting aside the same. For Appellant : Mr.C.Ramkumar For Respondent : Mr.A.Saravanan, (for R1) Govt. Advocate (Crl.Side) Mr.T.Muniratnam Naidu (for R2) O R D E R
This Criminal Revision Case is directed against the judgment of acquittal of the trial court, namely learned Sessions Judge, (Fast Track Court No.III), Poonamallee, dated 28.05.2007 made in S.C.No.546/2006.
2. The second respondent herein stood charged in the above said sessions case before the trial court for offences punishable under section 498-A and 306 IPC relating to the death of Sujatha, the wife of the second respondent herein. The petitioner is none other than the mother of the deceased. She was the de-facto complainant and was also examined as P.W.1 in the sessions case before the trial court. Apart from P.W.1, seven more witnesses were examined on the side of the prosecution. Out of eight witnesses examined on the side of prosecution, three alone were projected as eye witnesses. They are P.W.1, P.W.4 and P.W.6. P.W.4 and P.W.6 turned hostile and they did not support the prosecution case. The learned trial judge, on an appreciation of evidence, came to the conclusion that the solitary evidence of P.W.1, an interested witness, was not reliable and it was not safe to base a conviction on the uncorroborated testimony of P.W.1 and held the second respondent herein/accused to be not guilty of the offences with which he stood charged. Consequently, the learned trial judge acquitted the second respondent herein by his judgment dated 28.05.2007.
3. The correctness and legality of the same is questioned in this Criminal Revision Case.
4. The arguments advanced by Mr.C.Ramkumar, learned counsel for the petitioner, by Mr.A.Saravanan, learned Government Advocate (Crl.Side) representing the first respondent/State and by Mr.T.Muniratnam Naidu, learned counsel for the second respondent were heard. The materials available on record were also perused.
5. The deceased Sujatha was the wife of the second respondent/accused. Even according to the prosecution case, they fell in love with each other and got married to each other on 04.11.2004 against the wishes, and without the consent, of the parents of the deceased. According to the prosecution case, though the marriage happened to be a love marriage, within a couple of months from the date of marriage, there arose some misunderstanding following which the second respondent/accused started treating her with cruelty in inebriated mood and also suspecting her fidelity. It is the further case of the prosecution that such cruelty and harassment continued unabated till the date of occurrence, namely 24.06.2005, and the same drove the deceased Sujatha to commit suicide. Based on the said allegations the case originally registered under Section 174 Cr.P.C was subsequently altered into one for offences punishable under sections 498-A and 306 IPC.
6. It is not in dispute and it is rather the case of the prosecution itself that the deceased committed suicide by hanging. No suspicion has been expressed regarding the cause of death. On the other hand, as per the prosecution version, the cruelty caused to the deceased by her husband, namely the second respondent herein, was so unbearable and capable of driving the deceased to commit suicide and thus the second respondent committed an offence punishable under section 498-A IPC. For the very same reason, the second respondent was also prosecuted for abetting the commission of suicide by the deceased, an offence punishable under Section 306 IPC.
7. As many as three witnesses were projected to be the eye witnesses for proving the alleged cruelty and harassment caused to the deceased by the second respondent herein. Among the three eye witnesses, P.W.1 is none other than the mother of the deceased, who also incidentally happened to be the de-facto complainant. The other two eye witnesses are P.Ws.4 and 6. P.Ws.4 and 6 have not deposed in support of the prosecution case and hence they were treated hostile and were cross-examined with the permission of the court by the Public Prosecutor. Even then nothing favourable to the prosecution case could be elicited from the said witnesses. The same leaves the prosecution with the sole testimony of P.W.1 for the proof of the prosecution version of cruelty and harassment caused to the deceased by her husband, namely the second respondent herein.
8. The evidence of P.W.1 regarding the said cruelty is not a direct one. She would state that she got those information from her daughter over telephone. The death has occurred within seven months from the date of marriage. Admittedly, the marriage was not an arranged one and it was one without the consent of the parents of the deceased. It is also not the evidence of P.W.1 that after marriage, the parents of the deceased shed their ego and started to maintain cordial relationship with the deceased and her husband. It is her evidence that for three months from the date of marriage, there was no contact with her daughter and that only thereafter her daughter was in talking terms with her over phone and personally regarding the alleged tortures she met in the hands of her husband. Even though P.W.1 would speak of several instances of torture brought to her notice by the deceased, there is nothing to show that there was any mediation pursuant to such revelation. No complaint was given regarding the alleged torture. Under such circumstances, the court has to approach the evidence of P.W.1 carefully and accept the same only after subjecting the same to the test of careful scrutiny.
9. In the case on hand, though there are other members of the family of P.W.1 such as father, brother and sister of the deceased, none except P.W.1, has chosen to come and depose against the second respondent/accused. There is no convincing explanation for the non-examination of those persons. In ordinary circumstances, non-examination of a witness, whose examination, according to the defence case, will prove the innocence of the accused or disprove the case of the prosecution, shall not be cited as a ground for rejecting the case of the prosecution and it shall be the endeavour of the accused to examine such witnesses, either to disprove the prosecution case or to prove the innocence of the accused, if the accused feels so. But when a witness, who is capable of giving material particulars in respect of the prosecution case is not examined and no explanation is forthcoming from the prosecution for the same, the same should not be disregarded altogether. In this case, the other family members of P.W.1, who are the father, brother and sister of the deceased, have not been examined and no reason is offered as to why they have not been examined on the side of the prosecution. In the peculiar circumstances of the case, the non-examination of those witnesses assumes importance, especially, when the other eye witnesses, except interested witness (P.W.1) have turned hostile. The facts and circumstances of the case would warrant a cautious approach to the evidence of P.W.1 and the court below has rightly concluded that the uncorroborated testimony of P.W.1 cannot be made the basis for convicting the accused (second respondent herein) for the offences with which he stood charged. Furthermore, the innocence of the accused shall be presumed unless and until he is proved to be guilty of any offence. Such a presumption of innocence stands fortified by a judgment of acquittal pronounced by a competent court and normally the revisional court shall not interfere with the judgment of acquittal unless strong reasons are found warranting such interference. This court does not find any defect or illegality in the said approach made by the learned Sessions Judge. The well-considered judgment holding that the prosecution failed to prove the charges beyond reasonable doubt and acquitting the second respondent herein does not deserve any interference by this court in exercise of its revision power under Section 401 Cr.P.C.
10. For all the reasons stated above, this court comes to the conclusion that the Criminal Revision Case fails and the same is accordingly dismissed.
17.02.2010
Index : Yes
Internet : Yes
To
1) The Sessions Judge, (Fast Track Court No.III),
Poonamallee
2) The Public Prosecutor, High Court, Madras
P.R.SHIVAKUMAR, J.
[asr]
Order in Crl.R.C.No.400/2008
Dated : 17.02.2010