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2008 DIGILAW 703 (MAD)

P. Selvaraj v. Jayarani & Others

2008-02-27

P.R.SHIVAKUMAR

body2008
Judgment :- The defacto complainant based on whose information the case was registered by the police who also figured as P.W.1 in the trial before the Trial Court (Mahila Court, Salem) in S.C.No.289/2002, has come forward with this Criminal Revision Case against the judgment of acquittal dated 4. 2005 pronounced by the learned Sessions Judge, Mahila Court, Salem in the said case acquitting the respondents 1 to 6 herein (arrayed as A2 to A7 in the said Sessions Case). 2. The facts leading to the filing of the present revision case are as follows: (i) The deceased Murugan (A1) and Jayarani, the first respondent herein (A2) are the parents of Shanmugam @ Shanmuganathan, the second respondent herein(A3). Sasikanth, the 3rd respondent herein (A4) is the brother of Shanmugam @ Shanmuganathan. Senthil, Mahendran and Rajamani are his friends. P.W.1 Selvaraj is the father of P.W.3-Prabadevi, the alleged victim girl. On 30.3.1998 P.W.1 gave a complaint in writing to the Deputy Superintendent of Police, District Crime Branch, Salem stating that his daughter (P.W.3) was kidnapped on 24. 1997 at about 30. p.m., by the respondents 1 to 6 and the deceased Murugan from the house of P.W.1 at Peria Goundanoor, Omalur Taluk, Salem District, with the intention of compelling her to marry the second respondent herein (A3). (ii) The further allegation made in the said complaint is that a Maruthi van was used for the above said act of the accused persons and that while taking her in the said Maruthi van, P.W.3 was administered a juice mixed with a sedative material. It was also alleged in the said complaint that after two days, P.W.1 and others went in search of P.W.3 to Trichy but were not successful in tracing her and when they returned to Salem they got news that P.W.3 was kept in the house of P.W.8-Palpakki Krishnan, an Ex.M.L.A., and that P.W.6-T.Krishnaraj, father-in-law of P.W.1 and P.W.5-Vasanthakumari, wife of P.W.1 went to the said house of P.W.8 and rescued her from the custody of the accused. It was also averred in the said complaint that the accused were intimidating over phone stating that they would again kidnap P.W.3 unless she was left in their custody. It was also averred in the said complaint that the accused were intimidating over phone stating that they would again kidnap P.W.3 unless she was left in their custody. (iii) Based on the said complaint a case was registered on the file of the District Crime Branch, Salem in Crime No.7/1998 for offences under sections 328 and 366 I.P.C. P.W.9-Durairaj, Inspector of Police, District Crime Branch, Salem took up investigation of the case, examined the witnesses and recorded their statements, collected the necessary documents and 5 photographs marked as M.O.1 series, completed the investigation and submitted a final report on the file of the District Munsif cum Judicial Magistrate, Omalur alleging commission of offences punishable under Sections 328 and 366 I.P.C., by the accused persons. The learned District Munsif cum Judicial Magistrate, Omalur took it on file as P.R.C.No.12/1999, found that the offence punishable under Section 366 I.P.C., was exclusively triable by a Court of Session and committed the case after observing formalities to the Principal Sessions Judge, Salem for trial. The learned Principal Sessions Judge on question of jurisdiction made over the same to Mahila Court, Salem. .(iv) On appearance charges were framed in the Trial Court for offences punishable under Sections 363, 342 and 366 IPC and the accused pleaded not guilty. .(v) In the trial nine witnesses were examined as P.Ws.1 to 9, five documents were marked as Exs.P1 to P5 and five photographs were produced as M.O.1 series on the side of the prosecution. The second respondent herein/A3 was examined as the sole witness on the defence side and Exs.D1 to D10 were marked. .(vi) At the conclusion of trial, the learned Sessions Judge, Mahila Court, Salem on appreciation of evidence in the light of the arguments advanced on either side, came to the conclusion that the prosecution was not able to prove any one of the charges framed against the accused persons and pronounced the judgment on 4. 2005 acquitting all of them in respect of all the charges. 3. As against the judgment of acquittal pronounced by the Trial Court, the State has not chosen to file any appeal. Hence, the defacto complainant, P.W.1 has chosen to prefer this Criminal Revision Case challenging the correctness and legality of the judgment of the trial Court. 4. This Court heard the arguments advanced by Mr. K.V. Sridharan, learned counsel for the revision petitioner and Mr. Hence, the defacto complainant, P.W.1 has chosen to prefer this Criminal Revision Case challenging the correctness and legality of the judgment of the trial Court. 4. This Court heard the arguments advanced by Mr. K.V. Sridharan, learned counsel for the revision petitioner and Mr. S. Kalyana Raman, learned counsel for the respondents 1 to 6. The arguments advanced by the learned Government Advocate (Criminal Side) representing the 7th respondent were also heard. The materials available on record were also perused. .5. The respondents 1 to 6 herein and the deceased Murugan were alleged to have kidnapped P.W.3 daughter of P.W.1, with the intention of compelling her to marry the second respondent (A3). Even though Murugan who had been arraigned as the first accused in the charge-sheet passed away during committal proceeding itself, the case seems to have been taken on file with the very same array of accused persons disregarding the fact that the accusation against the said Murugan had abated even before the committal order. However, this Court is of the view that the said mistake or irregularity will not affect the merits of the case and it can be disregarded. 6. The respondents 1 to 6 (A2 to A7) were prosecuted before the learned Sessions Judge, Mahila Court, Salem for the offences punishable under Sections 363, 342. 328 and 366 I.P.C. The learned Sessions Judge, Mahila Court, acquitted all the accused persons holding that the charge of kidnapping had not been proved beyond reasonable doubt as the prosecution was not in a position to prove that the alleged victim, namely P.W.3, was aged below 18 years as on the date of alleged occurrence. The Trial Judge also disbelieved the prosecution version as there was inordinate delay in lodging the complaint and setting the law in motion and the said delay was not properly explained by the prosecution. The non-indentification of the vehicle in which the victim was allegedly kidnapped, the house at Trichy in which she was allegedly confined and the temple in which the alleged forcible marriage was solemnized was also one of the grounds on which the learned trial Judge disbelieved the story of the prosecution to come to the conclusion that the charges against the accused were not proved beyond reasonable doubt. The evidence of P.W.8-an Ex.M.L.A. does not support the case of the prosecution and on the other hand makes the defence theory, probable according to the learned trial Judge, as P.W.8 had clearly ruled out kidnapping and confinement in his house as alleged by the other prosecution witnesses. The learned trial Judge has also considered the evidence of D.W.1 and the documents produced on the side of the accused as Exs.D1 to D10 to arrive at the conclusion that the case might have been foisted because the parents of the alleged victim P.W.3 did not like the love affairs that had developed between P.W.3 and the second respondent/A3. .7. The learned counsel for the revision petitioner submitted that there was clear explanation offered by the prosecution for the delay in lodging the complaint; that the unchallenged evidence of P.Ws.1 and 3 regarding the age of P.W.3 were not properly considered by the learned trial Judge; that the learned trial Judge simply observed that the age fixed by the Medical Officer after conducting ossification test was capable of having an error of plus or minus two years and thus fixed the age of the victim-P.W.3 not less than 18 years; that the said procedure adopted by the learned trial Judge was erroneous and inappropriate and that the learned trial Judge should have accepted the certificate issued by the Medical Officer as such for fixing the age of the victim-P.W.3. 8. This Court is not able to countenance the above said submission made by the learned counsel for the revision petitioner. The procedure adopted by the learned trial Judge to fix the age of the victim with the help of the certificate issued by the Medical Officer after conducting ossification test is perfectly in tune with the law holding the field on the subject. A concession of plus or minus two years shall be made in assessing the age of a person when such age is ascertained medically after subjecting the person to ossification test. When two views are possible, namely, the age of the alleged victim could be two years below the age fixed by the Medical Officer or two years above the age fixed by the Medical Officer, the view which is favourable to the accused alone should be adopted in a criminal case. When two views are possible, namely, the age of the alleged victim could be two years below the age fixed by the Medical Officer or two years above the age fixed by the Medical Officer, the view which is favourable to the accused alone should be adopted in a criminal case. Apart from the abovesaid fact that the learned trial Judge has not committed any error of law in assessing the age of the victim, there is failure on the part of the prosecution to produce other documents which would clinchingly prove the age of the alleged victim. Admittedly, P.W.3 the alleged victim had passed her school final year. Therefore, nothing prevented the prosecution to get the School Leaving Certificate or the transfer certificate to prove the date of birth and the age of the victim. Of course, there is the evidence of P.W.1 in his cross-examination that during investigation he handed over the transfer certificate of P.W.3 to the Investigating Officer. But the non-production of the said transfer certificate cannot be taken advantage by the prosecution. On the other hand, the same can be the ground on which an inference can be drawn that the said certificate was not produced because the production of the same would prove that the alleged victim was not a minor as on the date of the alleged occurrence. Therefore, the challenge made to the finding of the trial Court on the question of the age of the alleged victim, according to this Court, is not sustainable. 9. It is the further contention of the learned counsel for the revision petitioner that the defect in the investigation should not have been used to disbelieve the prosecution version and that the learned trial Judge failed to notice that the prosecution offered a reasonable explanation for the delay in setting the law in motion. According to him, soon after the victim was rescued from the clutches of the accused, considering the future of the victim girl and with a view to ensure that the status of the family is not tarnished, P.W.1 refrained from giving a complaint immediately and that since the accused were making intimidations demanding that the victim should be entrusted to their custody P.W.1 chose to give the complaint. In this regard, after going through the materials available on record, this Court is not in a position to accept the abovesaid submission made by the learned counsel for the revision petitioner. 10. The very fact that P.W.1 gave the complaint drafted by an advocate and the absence of acceptable explanation for the inordinate delay of 11 months in setting the law in motion is the strong ground to disbelieve the case of the prosecution and hold that the case might have been foisted with ulterior motive. The learned trial Judge has also appreciated various letters written by the alleged victim and photographs showing both the alleged victim and the second respondent/A3 to show the intimacy between them. 11. Upon considering all the aspects, this Court came to the conclusion that none of the findings recorded by the trial Court could be termed either infirm or defective, muchless perverse. When a Court of revision can interfere with the judgment of acquittal pronounced by the trial Court has been clearly spelt out by the Honourable Apex Court in BANSI LAL V. LAXMAN SINGH ( AIR 1986 SC 1721 ). In the said case referring to an earlier case D. STEPHENS v. NOSIBOLLA ( AIR 1951 SC 196 ) the Honourable Apex Court has held that the revisional court cannot interfere with the judgment of acquittal unless the finding of the lower court is perverse. It has also been observed therein that merely because the appellate court is inclined to differ from the findings of fact reached by the trial Court on appreciation of evidence, the appellate court would not be justified in interfering with the judgment of acquittal unless the finding is perverse. The said proposition applies with vigor in respect of a revision by a private party, namely P.W.1 in this case. This Court does not find that any one of the findings recorded by the learned trial Judge be either infirm or defective as indicated supra. There is no chance for holding the said findings of the trial Court to be perverse. There is no merit in the criminal revision case and this Court will not be justified in interfering with the judgment of acquittal pronounced by the learned trial Judge. Accordingly the Criminal Revision Case deserves to be dismissed. 12. In the result, the revision fails and accordingly, dismissed.