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2006 DIGILAW 3128 (MAD)

Somasundaram & Others v. Dhanalakshmi

2006-11-17

S.ASHOK KUMAR

body2006
Judgment :- (Criminal Revision case has been filed to set aside the judgment and conviction dated 7.9.2000 made in C.A.No.41/1999 passed by the learned Additional Sessions Judge cum CJM, Cuddalore.) This Criminal Revision case has been filed to set aside the judgment and conviction dated 7.9.2000 made in C.A.No.41/1999 passed by the learned Additional Sessions Judge cum CJM, Cuddalore convicting the petitioners for the offence under Section 494 read with section 109 IPC and sentencing the first petitioner to undergo one year rigorous imprisonment and a fine of Rs.1000/=, sentencing imprisonment of the petitioners 2 to 4 till the rising of the court and a fine of Rs.1000/=. 2. The brief facts of the case are as follows:- (a) The complainant/respondent herein filed a private complaint against the first petitioner and 4 others for an alleged offence under Section 494 r/w. Section 109 IPC stating that she got married to the petitioner on 6.5.1990 and that later she was harassed with demands of dowry and was driven away to her parents house and that later on 17.9.1995 the first petitioner got married to the second petitioner for a second time in the Shivan Temple in Nallur Village and that the persons arrayed as accused Nos. 3 to 8 in her complaint also participated in the said marriage and aided and abetted the same. The third petitioner is the father of the second petitioner and the 4th petitioner is the father of the first petitioner. (b) The private complaint was taken on file as C.C.No.719 of 1995 by the learned Judicial Magistrate, Vridhachalam. On behalf of the complainant P.Ws 1 and 2 were examined and Exs.P.1 to 3 were marked. On behalf of the accused D.Ws.1 and 2 were examined and Exs.D.1 to D.3 were marked. When the accused were questioned under Section 313 (1)(b) Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same. (c) The learned Judicial Magistrate, Vridhachalam, on a consideration of the evidence let in both oral and documentary by the parties and also the submissions of the respective counsels, found guilty of the accused under Section 494 and 494 r/w.109 IPC and sentenced them to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/=. Aggrieved over the same, the accused preferred appeal in C.A.No:41 of 1999 before the leaned Additional Sessions Judge cum Chief Judicial Magistrate, Cuddalore. The Additional Sessions Judge after detailed enquiry and hearing the arguments of both sides acquitted accused 4 to 8 and confirmed the conviction and sentence of the first accused. However, he modified the sentence of accused 2 to 4 and imposed sentence till the rising of the court and fine of Rs.1000/=. Challenging the said conviction and sentence, this Criminal Revision Case has been filed by the accused 1 to 4. 3. Learned counsel for the petitioners contended that P.W.2 is the sole eye witness to the alleged second marriage. But in his cross examination he deposed that he does not even know P.W.1. P.W.2 says that A.1 came and invited him for the marriage. The deposition of P.W.2 would show that his evidence is quite unnatural and suffers with improbabilities, because there is necessity for A.1 to invite P.W.2. Ex.D.2 falsifies the evidence of P.W.2. Learned counsel for the petitioners contended that both the courts below have erroneously convicted the accused when there is no corroboration of P.W-2's evidence who is a chance witness, instead given the benefit of doubt and acquitted the accused. 4. There is no representation for the respondent/complainant. In spite of notice, the respondent did not either appeared in person or engaged a counsel. Therefore, this court appointed Mr. C.R. Malarvanna as Amicus Curiae by order dated 24.3.2006. As he was also not appearing by order dated, 25.8.2006, this Court appointed Mr. R. Rajan as Amicus Curiae to represent the case of the respondent. But on the date of hearing of this Revision, he is also not present. 5. According to the complainant the marriage between her and the first petitioner/accused took place on 6.5.1990 and a male child was also born out of the said wedlock. It is alleged by her that the second marriage between the first accused and the second accused took place on 17.9.1995 in front of the Nallur Sivan Temple at Nallur between 9.00 a.m., to 10.30 a.m., by exchange of garlands and by tying Thali. For that the accused 3 to 9 were abettors by participating in the rituals in connection with the second marriage. For that the accused 3 to 9 were abettors by participating in the rituals in connection with the second marriage. Thus, according to the complainant when the first marriage with her is subsisting, the second marriage of the first accused with the second accused is invalid and the accused have thereby committed criminal offence punishable under Section 494 and Section 494 r/w.109 IPC. 6. Pending the trial, the 9th accused died and the case was closed as against him. As already stated, the trial court convicted accused 1 to 8 and the Sessions Judge acquitted accused 5 to 8. Therefore, the present revision is filed only by accused 1 to 4. 7. A perusal of the deposition of P.W.2 who is the only eye witness to the alleged second marriage between accused Nos 1 and 2 would go to show that his evidence is not trustworthy and quite unnatural. Because P.W.1 is a resident of Neyveli and P.W.2 is a resident of Valaiamadevi which is 15 kilometers away from Neyveil. He deposed that when the first accused came and invited him for his marriage, he questioned him as to what happened to the earlier marriage and for that he answered that "TAMIL" The distance between A.1's village and P.W.2's village is 10 Kms. He also deposed that after 15 days of the alleged second marriage he met the complainant Dhanalakshmi in his village Valaiyamadevi and enquired about her absence in the marriage, she replied that she was not aware of the second marriage and she felt very much about the second marriage. But in his cross examination, he deposed that "TAMIL" This material contradiction only goes to show that P.W.2 is only a planted witness. He is also not a relative of A.1 or a family friend of A.1. There is no necessity to invite P.W.2. 8. It is also the evidence of the parties that at the time of the occurrence, the temple was not open and the doors were closed. If it is so, the normal behaviour of the parties would be to conduct such ceremony in a nearby temple and seek the blessings of the God or Goddess. But it is the evidence of the witnesses that the alleged marriage was solemnized in the outside the temple, which is highly unbelievable. If it is so, the normal behaviour of the parties would be to conduct such ceremony in a nearby temple and seek the blessings of the God or Goddess. But it is the evidence of the witnesses that the alleged marriage was solemnized in the outside the temple, which is highly unbelievable. In Ex.D.2, which is the FIR given by the complainant, there is no mention about the participation of P.W.2 in the second marriage. In these circumstances when the solitary evidence of P.W.2 itself is highly doubtful and not corroborated by the other prosecution witnesses, it will not be safe to convict the accused for the alleged offences. Therefore the petitioners are entitled for the benefit of doubt. 9. In the result, this Criminal Appeal is allowed. The conviction and sentence of the accused are set aside and the petitioners are acquitted of the charges. Bail bond if any executed by them shall stand cancelled. Fine, if any paid by them shall be refunded.