Tuesday, July 16, 2013

ZERO conviction in 498a WHEN WIFE ALIVE!! Pay compensation Rs 25,000, then imprisonment under 498a waived !! MADRAS HC classic case where EVEN when hubby marries another woman, first wwife files 498a, hubby NOT imprisoned as the first wife is still alive !! the first wife and accused hubby had some relationship before marriage and probably they were forcefully married by the village panchayat !! sadly the court DOES NOT interfere with the panchayat decision though most panchayats are NOT constitutionally valid / NOT permitted to administer justice !!


THIS case goes on to prove that there is practically ZERO conviction in 498a WHEN WIFE is ALIVE!! After reading 100s of cases I am yet to see an IMPRISONMENT when the wife is alive 

All the 498a drama, the hungama the arrest in front of the society is DONE to harass the husband and family and extort money 

In this case the husband is asked to Pay compensation Rs 25,000 to the first wife, and then imprisonment under 498a waived !! 

MADRAS HC classic case where EVEN when hubby marries another woman & first wife files 498a inter alia, accused / first hubby is NOT imprisoned as the first wife is still alive !! 

To top it , the first wife and accused hubby had some relationship before marriage and probably they were forcefully married by the village panchayat !! 

PS : sadly the court DOES NOT interfere with the panchayat decision though most panchayats are NOT constitutionally valid / NOT permitted to administer justice !! 

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* there are 10s of 1000s of false 498a cases filed all over india
* various courts have castigated women filing such false cases and mis using the process of law
* in all these cases the hapless hubby and his mother and sister are threatened with arrest 
* they are threatened with imprisonment !!
* most of the time the hubby agrees to settle due to the fear of arrest 
* however the truth is that there is HARDLY ANY imprisonment in 498a when the wife is alive
* here is a classic case where the husband is told (finally) that IF he pays the compensation of rs 25000 he will NOT be arrested !! ... 
* so , husbands threatened with 498a should remember that there is practically ZERO conviction and imprisonment in 498a !!
* the threat and fear are used to milk the honest male ...that is it !!

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 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30 / 10 /2012

CORAM

THE HONOURABLE MR.JUSTICE C.S.KARNAN

Crl.R.C.No.1352 of 2005


Murugan           Petitioner 

Vs.

State rep. by
The Inspector of Police,
All Women Police Station,
Virudhachalam,
Cuddalore District,
Crime No.11 of 2003. Respondent 


PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C.,  to revise the order of conviction in C.C.No.38 of 2004, on the file of Judicial Magistrate-I, Vridhachalam and confirm the conviction under Section 498-A IPC and setting aside the conviction under Section 406 IPC and sentence passed against the petitioner on 19.09.2005 in C.A.No.95 of 2004, on the file of the learned Additional District Judge, Fast Track Court-III, Vridhachalam, Cuddalore District. 


For Petitioner : Mr.S.Saravanakumar

For Respondent : Mr.C.Balasubramanian
 Additional Public Prosecutor

*******

O R D E R

The brief facts of the case are as follows:-

The respondent / police herein had registered a criminal case in Crime No.11 of 2003, on the file of All Women Wing Police Station,  Vridhachalam on the strength of defacto complainant's complaint  (P.W.1-Kalayarasi) stating that the first accused, viz., Murugan, S/o.Kuppusami had developed a love affair with P.W.1 and had an intimate relationship with her for the past one year. Thereafter, the marriage between the couple was solemnized on 28.09.2002 at Shivan Temple, Nellore. After marriage, both spouses led their married life. As P.W.1 had not conceived,  the first accused tortured P.W.1 to give her consent for his second marriage. The second and third accused, i.e., the parents of the first accused extended their support in order for the demand of dowry and for a second marriage of their son. Thereafter, the first accused had married one Malathi with the support of second and third accused. Further the first accused had collected gold ornaments from P.W.1 and had  pledged the same at a Bank on 23.09.2002. Thereafter, the accused had not returned to his lawful wife P.W.1. Hence, the criminal case has been registered under Sections 406 and 498-A of I.P.C. against the first accused and under Section 498-A against the second and third accused.  The said case was investigated by the Inspectress of Police and a charge sheet has been filed before the Judicial Magistrate-I,  Vridhachalam. The criminal case has been taken on file as C.C.No.38 of 2004.

2. On the side of the prosecution, 7 witnesses had been examined and three documents were marked, 2 material evidences had been produced. On the side of the accused, A-1 was examined as R.W.1 and three documents were marked. 

3. P.W.1 had adduced evidence that there existed an intimate relationship for the past one year. P.W.1 used to take bath near a pond near her house, wherein A-1 also took his bath. At that time, both had developed an intimate relationship. This place became convenient for them to develop their illicit relationship. This incident was continuously noticed by P.W.4, viz., Nagamuthu, who was a shepherd of cattle. During that time, on one occasion A-1 refused to marry P.W.1 and therefore, a wordy quarrel happened between them and this was noticed by P.W.4.

4. P.W.1 further stated that the incident was conveyed to the second and third accused, who are parents of A-1 and they replied that A-1 is a man and could go anywhere and also not agreed to marriage between the couple. Subsequently, arbitration was conducted by the Village Panchayat and the marriage was solemnized on 28.08.2002 at Shivan Temple, Nellore. The marriage was performed by a Prohit in the presence of around 50 persons related to the couples. Immediately, after marriage, the couple had stayed in P.W.2 viz., Periyasamy's house for a period of two days. Subsequently, P.W.6 and his wife had vacated their house and made arrangement for the stay of the marriage couple, wherein the married couple had lived in for a period of one year. During that period, P.W.1 had not conceived, therefore,  A-1 told P.W.1 that she does not have the capacity to conceive. Hence, A-1 had compelled P.W.1 for a written consent for a second marriage, but the same was refused by P.W.1. In the result, A-1 became annoyed and had beaten P.W.1 and had also used abusive language and this incident was witnessed by P.W.6. Thereafter, P.W.6, the brother of P.W.1, had given five sovereigns in gold jewellery and the same was collected by A1 from P.W.1 and A-1 went to the Bank for pledging the jewels in order to start his business, but A-1 had not turned up for three days. Immediately, P.W.1 had inquired about her husband and came to know that A-1 had married one Malathi, daughter of Thangaraj of the same Village. P.W.1 had informed the villagers, and the village panchayat had conducted arbitration, but the accused 1, 2 and 3 had not given a proper answer to the panchayatdars regarding the second marriage. Hence, P.W.1 had levelled a criminal complaint before the Inspectress of Police, attached to the all Women Wing Police Station, Vridhachalam.

5. P.W.1 in order to substantiate her evidence had marked Ex.P1 complaint dated 28.09.2003, Ex.P2-letter of undertaking given by A1 in order to marry P.W.1, which was written by P.W.5 and duly signed by A-1 dated 28.10.2002, Ex.P3-F.I.R., dated 14.10.2003. Further P.W.1 had produced material objects, viz., M.O.1-photo series, M.O.2-negative of photo series (six in numbers).

6. P.W.6 adduced evidence that the Village Panchayatdars had conducted panchayat, wherein, the second accused demanded household articles as seethana and also demanded gold ornaments for P.W.1 and A-1. The same were provided by P.W.6 after selling his cultivable land. P.W.6's evidence fully collaborates with that of P.W.1.

7. P.W.2 had adduced evidence that P.W.1 was known to him and he is a neighbor,  who attended the marriage which was solemnized between A-1 and P.W.1 at Shivan Temple, Nellore. The rest of P.W.2's evidence fully collaborates with the evidence of P.W.1. P.W.4., Nagamuthu had adduced evidence that P.W.1 and A-1 used to take their bath at the village pond, where both had developed a love affair and became intimate and the same was witnessed on several occasions by P.W.4. During that time, on one occasion, there emanated a petty quarrel between P.W.1 and A.1 since A-1 refused to marry P.W.1. Knowing the quarrel, P.W.4 went there and tried to bring about a compromise between them, but A-1 ignored any counselling or suggestions.

8. P.W.3, sister-in-law of P.W.1 had adduced evidence that her husband had sold a portion of cultivable land. Out of the sale consideration. P.W.6 had provided seethana to A-1 according to his demand. The rest of evidence of P.W.3 was corroborative with P.W.1's evidence. P.W.5, Tamilmani had adduced evidence that A-1 and P.W.1 had developed an intimate relationship and the same was known to all at the Village. After some time,  A-1 had refused to marry P.W.1, hence, a panchayat was conducted in the villlage. He had further stated that he had written a letter in order to marry P.W.1 and the same was signed by A-1. Thereafter, the marriage was solemnized, the said letter was marked as Ex.P3. P.W.5 further stated that the said letter had been written on the consent of A-1. P.W.5 further stated that he had also participated in the said marriage.

9. R.W.1, i.e, A-1 had adduced evidence that the marriage  solemnized between P.W.1 and A-1, being a marriage of compulsion and hence the same was informed to P.W.1 through a lawyer's notice. R.W.1 further stated that he is the sole son to his parents viz., A-2 and A-3 and they possessed valuable immovable properties. In order to grab the property A-1 was kidnapped by one Vaidyalingam and Veeramuthu and taken to Nellore Shivan Temple, wherein, the kidnappers had obtained signatures in blank papers. R.W.1 further stated that he intends to file a case for cancellation of marriage.

10. P.W.7 had adduced evidence that P.W.1 had lodged a complaint against the accused on 14.10.2003. Initially, the case was registered as C.S.R.No.237 of 2003. Thereafter, a preliminary inquiry was conducted and the case was converted as one in Crime No.11 of 2003. Subsequently, sworn statement had been collected from P.W.1 and all the accused were arrested and produced before the Court. Subsequently, P.W.7 had collected statements from six witnesses. All these witnesses had adduced evidence in the same line. P.W.7 further stated that the accused had demanded dowry from P.W.1. Therefore, P.W.6, brother of P.W.1 had sold a piece of cultivable land and provided house hold articles, gold jewellery to the married couple, out of the sale consideration of the land. P.W.7 further stated that A-1 had collected gold ornaments from P.W.1 and deserted P.W.1 and had not turned up.

11. On verifying the contention of the prosecution case and on recording the evidence of the prosecution side, scrutinizing the exhibits marked by the prosecution and also recorded the evidence of the defence side and after scrutinizing the documents marked on the side of the defence and on hearing the arguments of the learned counsels on both sides, the learned Magistrate-I,  Vridhachalam observed that the second and third accused were acquitted since the prosecution case was not proved beyond doubt. The learned Magistrate had further observed that the first accused had married P.W.1 and tortured P.W.1 for obtaining consent to a second                  marriage; the same was proved through P.W.3 and P.W.4 evidence. R.W.1's statement was that the marriage was arranged under compulsion, but the same was not proved. Hence, the learned Magistrate held that the first accused was guilty under Section 498-A and 406 IPC since A-1 had tortured P.W.1 for dowry and collected jewelleries from P.W.1 and cheated her. Therefore, the learned Magistrate had imposed six months rigorous imprisonment against the  first accused for the offence under Section 498-A IPC and also imposed a sentence of six months rigorous imprisonment for an offence under Section 406 IPC. The learned Magistrate further ordered the above sentences are to run concurrently and that the period of imprisonment already undergone by the accused is to be set off as per Section 428 of Criminal Procedure Code. Learned Magistrate had ordered compensation for a sum of Rs.25,000/- for cheating P.W.1 of five sovereign gold jewellery and for harassment and torture caused to her.

12. Aggrieved by the said conviction and sentence and compensation, the accused had filed an appeal in C.A.No.95 of 2004 before the learned Additional District Judge, Fast Track Court-III, Vridhachalam, Cuddalore District. The learned judge after perusing the entire trial Court records had framed four issues, viz., 

"(i) The judgment of lower Court is against law weight of evidence and probabilities of the case.

(ii) The lower Court erred in believing the evidence of the prosecution witnesses.

(iii) The lower Court ought to have considered the version of the accused / appellant.

(iv) The lower Court ought to have come to the conclusion that there was no corroboration and support to the case of prosecution."

The learned judge, after perusing the grounds of appeals and on hearing the arguments of both side learned counsels, partly allowed the appeal. The learned judge upheld the sentence imposed on the first accused for the offence under Section 498-A IPC and set-aside the sentence imposed on the accused for the offence under Section 406 IPC. However, the award of compensation of a sum of Rs.25,000/- payable by the accused to P.W.1 was confirmed.

13. Not being satisfied with the judgment of the appellate court, the above revision has been filed.

14. The learned counsel for the revision petitioner submitted that the accused had not demanded any dowry from P.W.1 or her brother. Due to difference of opinion between A-1 and P.W.1, the criminal case has been levelled against the three accused. Once the offence under Section 498-A had not been proved against A-2 and A-3, therefore, the same findings are applicable to A-1 also. The prosecution case was that P.W.6-brother of P.W.1 had sold his property in order to fulfill the demand of dowry made by the accused jointly. To prove the same, no substantiating evidence i.e, sale deed pertaining to the land transaction had been produced. As such, the prosecution case loses its strength and a lacuna arises in the judgments of the Courts below. The learned counsel further pointed out the prosecution listed 12 witnesses, but 7 witnesses had been examined, out of the 7 witnesses, 6 witnesses are interested witnesses including P.W.1's brother and her sister-in-law. P.W.7, Inspectress of Police had not proved through her investigation the offences under Section 406 and 498-A IPC regarding date of harassment, date of payment of fine and the nature of harassment for demanding dowry. Regarding offence under Section 406 list of gold ornaments were not mentioned and not produced as material evidence. Therefore, both the offences had not been proved beyond doubt. The learned counsel further submitted that the photo series and negatives of the photo series had not been marked through the photographer, who is the authorized person to narrate about the series. On the same allegation, P.W.1 had lodged a complaint with the regular Police Station at Veppur. The prosecution case arises on the same occurrence on the strength of the so-called second complaint levelled by P.W.1. It is an admitted fact that as per the statement of P.W.1 to P.W.6 that A-1's family is financially sound and as such, there is no necessity for the marriage to be performed at a small temple in the presence of few members, without proper invitations and without other necessary arrangements for conducting a marriage in an acceptable manner. Therefore, it is seen that the marriage has been solemnized only on the compulsion of P.W.1. Now, the said marriage is under challenge by A-1, hence A-1 has issued legal notice to P.W.1 for cancellation of marriage and that too immediately after the so-called marriage. Under the circumstances, the entire prosecution case initiated against the accused is not maintainable under law since the dispute between A-1 and P.W.1 are a family dispute which is purely civil in nature. The accused has already undergone 29 days imprisonment as a prisoner and as a result an innocent person has been put to grief.

15. Learned counsel for the state would submit that the accused had developed an intimate and illicit relationship with P.W.1 after promising her with marriage. Believing the same, P.W.1 had condescended to A-1s arrangement, but after some time, A-1 refused to marry her and carry out his promise. This illicit relationship by the couple was noticed not only by P.W.4, but by the entire village. Hence, the aggrieved P.W.1 had made an appeal to the Village Panchayatdars, wherein A-1 also participated and had given an undertaking letter duly signed by him stating that he would take entire care of P.W.1 as his spouse. The letter of undertaking had been written by P.W.5 who also rendered evidence besides participating in the marriage. The time of marriage i.e., on 28.09.2002 at Shivan Temple, Nellore, was fixed as it was told that this was a  consecrated  place for conducting and solemnizing marriage and which was performed by a Prohit, the marriage photographs were also taken testifying the said marriage and were marked before the trial Court. As per the statement of A-1 i.e., kidnap and compulsory marriage it only remains as an hypothetical theory and after strategy.  After the marriage, P.W.6 brother of P.W.1 had sold his cultivable land and had given seethana  to the married couple meeting with the demand of A-1 and his parents. The gold ornaments given to P.W.1 had been collected by A-1 for pledging in order to start a business, the same was not carried out and the accused left the companionship of P.W.1 subsequently and married one Malathi, daughter of Thangaraj of the same Village. A-1 had beaten P.W.1 and this incident had been witnessed by P.W.4. The factual position had been proved by the prosecution beyond doubt before the trial Court through oral and documentary evidence. As such, there is no lacuna appearing in the judgments of the Courts below. Further, only minimum punishment has been imposed on the accused.

16. From the foregoing discussions, this Court is of the considered view:-

(i) Apparently there was an illicit relationship between A-1 and P.W.1, the same was noticed by the village folk, A-1 had refused to marry P.W.1., hence, P.W.1 made an appeal to the village panchayatdars, wherein A-1 had openly admitted to his relationship with P.W.1. To confirm the same, he had given a signed letter and the same was marked before the trial Court.

(ii) A-1's parents had not agreed with the findings of the panchayatdars, therefore, the panchayatdars and other village folk had conducted the marriage at the Shivan Temple, Nellore and the marriage was conducted and solemnized as per Hindu Customs and Rights and the same was performed by a Prohit. The marriage photographs had also been produced before the trial Court as material evidence.

(iii) A-1 after receiving gold ornaments from P.W.1 as provided by P.W.6, who is the brother of P.W.1, left the companionship of P.W.1 assuring that he would start a business after pledging the jewels, the same was not fulfilled. As such, A-1 committed a serious breach of trust.

(iv) P.W.6 brother of P.W.1 had sold a portion of the agricultural land in order to fulfill the demand of the dowry requirement made by the accused. It was proved P.W.6 had the financial capacity to advance such amount of dowry and this fact was not denied by the public as well as the accused side. This statement unilaterally confirmed by the prosecution witnesses.

(v) The accused's statement that he was kidnapped and compelled to marry P.W.1 is a statement not applicable in the instant case because the accused had developed an illicit relationship before marriage, therefore, for solemnizing the marriage by tying of thali, additional consent is not required.

(vi) P.W.1 is an aggrieved person and now in a deserted position and also a parentless lady and could very well take  recourse to the family Court for the restoration of conjugal rights and also interim relief for her maintenance, therefore, this Court declines to interfere the sentence of six months rigorous imprisonment unless he pays the compensation amount viz., a sum of Rs.25,000/- to be paid directly to P.W.1 by way of demand draft, in her favour. 

17. On considering the facts  and circumstances of the case and the arguments advanced by the learned counsels on either side and on perusing the impugned judgments of the Courts below and this Court's view listed above i.e., (i) to (vii), this Court allows the revision with a condition that the revision petitioner shall pay a sum of Rs.25,000/- as compensation on or before 30.11.2012 and that upon payment of this compensation,  the rest of the sentence of rigorous imprisonment would be waived. This Court further directs the accused / revision petitioner to file a memo before the trial Court regarding the mode of payment effected. In case the accused does not comply with the above direction of this Court, the learned  Judicial      Magistrate-I, Vridhachalam is directed to issue a non-bailable warrant and secure the accused forthwith into judicial custody in order to undergo the remaining period of rigorous imprisonment as per appellate Court order.

18. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the conviction and sentence passed in C.A.No.95 of 2004, on the file of Additional District Judge, Fast Track Court-III, Vridhachalam, Cuddalore District, dated 19.09.2005, modifying the conviction and sentence passed in C.C.No.38 of 2004, on the file of Judicial Magistrate-I, Vridhachalam, dated 04.11.2004 is modified. Accordingly ordered.  


30 / 10 / 2012

Index   : Yes.

Internet : Yes.

r n s


C.S.KARNAN, J.

r n s

To

1. The Inspector of Police,
    All Women Police Station,
    Virudhachalam,
    Cuddalore District,
    Crime No.11 of 2003.

2. The Judicial Magistrate-I,
    Vridhachalam. 

3. The Additional District Judge, 
    Fast Track Court-III, Vridhachalam,
    Cuddalore District. 





Pre Delivery order made in
Crl.R.C.No.1352 of 2005






  30   / 10 /2012

Pre-delivery order made in
Crl.R.C.No.1352 of 2005


To

The Hon'ble MR.JUSTICE C.S.KARNAN



Most respectfully submitted,

R.Narender,
P.A. to the Hon'ble Judges