Animadverting upon the the judgement dated 8.11.2005, passed by the Judicial Magistrate No.1, Mettur Dam, in C.C.No.55 of 2003, this criminal revision case is focussed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
The police registered the case in Crime No.1 of 2003 for the offenes under
Section 498-A IPC and
Section 4 of Dowry Prohibition Act as against the accused, at the instance of P.W.1-Dhanapackiam. The learned Magistrate, after hearing both sides, acquitted the accused. On the Government side no appeal was filed. Being aggrieved by and dis-satisfied with the acquittal of the accused, this revision is focussed by the de-facto complainant, on various grounds, the gist and kernal of them would thus:-
The learned Magistrate acquitted the accused on the sole ground that the witnesses, who spoke in support of the prosecution case, are the victim herself and her parents and other near relatives and that there was no independent evidence to buttress and fortify the case of the prosecution.
3. Heard both sides.
4. The point for consideration is as to whether the approach of the learned Magistrate in acquitting the accused on the main ground that the witnesses are partison witnesses, as they happened to be the relatives of the de-facto complainant, is correct.
5. Heard the learned Additional Public Prosecutor also.
6. Despite notice served on respondents 2 and 3 no one turned up and represented the matter.
7. The learned counsel for the revision petitioner would detail and delineate that in matrimonial matters, the Court cannot expect totally stranger witness. Only relatives would be in a position to speak about what happened between the husband and wife and also about the harassment meted out to the wife; wherefore, the approach of the learned Magistrate in acquitting the accused on the ground that the witnesses are close relatives, warrants interference by this Court.
8. At this juncture, my mind is reminiscent and redolent of the following decision of the Honourable Apex Court:
(2009) 2 Supreme Court Cases(Cri) 389 GURDEV RAJ VS. STATE OF PUJAB, an excerpt from it would run thus:
"14. It also cannot be said that since Rajani Bala and Pooja were closely related to deceased Bhushan Lata, their version could not have been believed. In our opinion, the trial Court was wholly right in holding that Rajani Bala and Pooja were no doubt relatives of the deceased but they could not be termed as 'interested' witnesses. The court was also right in further stating that close relatives would be most reluctant to spare the real assailant and would falsely implicate an innocent person. After seeing the demeanour of witnesses, the trial Court believed both of them. The High Court again considered their evidence and confirmed the finding recorded by the trial Court. We see no infirmity in the approach of the trial court as well as of the High Court. It, therefore, cannot be said that by believing these two witnesses, any illegality was committed by the Courts below."
9. It is therefore clear from the Honourable Apex Court's decision on relative witness that simply because certain witnesses are related to the victim there is no hard and fast Rule that their evidence should be discarded. As such throwing to winds, the clear mandate as found enunciated in various decisions set out supra, the Magistrate discarded the evidence of P.Ws.4, 6, 7, 8 and 14.
10. It is a trite proposition of law that so far defence plea is concerned, proof beyond reasonable doubts is not required and mere preponderance of probabilities would be sufficient. But on the other hand, it is the duty of the prosecution to prove the case beyond reasonable doubts. The Magistrate, in paragraph No.20 highlighted that witnesses P.W.1(victim), P.W.2 and P.W.3-the parents of the de-facto complainant and other witnesses, namely, P.Ws.4, 6, 7, 8 and 14, the relatives, spoke about the demand of dowry by the bridegroom's side from the bride's side at time of marriage between P.W.1 and A1 on 8.6.1997 and they also further narrated about the trouble, which erupted in the matrimonial life of P.W.1 and A1. P.W.4 would, without any embellishment, depose to the effect that it was P.W.4, who participated in the panchayat and ascertained during panchayat that P.W.1 was beaten by A1 and that he warned A1 not to indulge in such wife battening or indulge in the recidivism beating of P.W.1. I am at a loss to understand as to how the learned Magistrate has lost sight of such evidence. For constituting offence under
Section 498-A, it is not necessary that infliction of cruelty should be one based on dowry demand only. Any type of cruelty is cruelty for the purpose of attracting ingredients of
Section 498-A of IPC. P.W.1 being the victim detailed and delineated the cruelty meted out to her. It is also in evidence of the witness that after marriage even while P.W.1 was pregnant, she was ill treated by A1. Whereupon alone Panchayat was came to be conducted and in that P.W.4 participated and warned A1. After delivery of the first child, once again there was trouble, which caused rift and flutter in the matrimonial relationship of them. Then there was resumption of cohabitation between P.W.1 and A1 and P.W.1 gave birth to another child. Thereafter also bad blood started running in the relationship of P.W.1 and A1. As such, the evidence available on record would apparently exemplify and demonstrate that at intermittent intervals, A1 perpetrated cruelty on P.W.1 and due to that alone P.W.1 and A1 are living apart from each other. All these facts have not been considered by the learned Magistrate, but given weightage to the plea of the accused as though the witnesses are relatives instead of discarding such defence plea as Nihil and rem.
11. While observing as above, I cannot lose sight of the fact that regarding the offence under
Section 4(1) of the Dowry Prohibition Act is concerned, the discretion exercised by the learned Magistrate cannot be interfered with for the simple reason that when two views are possible and if the learned Magistrate takes up one view in favour of the accused, this Court, while exercising revisional jurisdiction cannot interfere with it. Even though there is ample evidence to show that on the marriage day itself there was some dispute relating to demand of dowry on the bridegroom's side from the bride's parents, yet thereafter, P.W.1 and A1 gave birth to two children and there had been long lapse of time. As such, the dowry aspect is concerned the discretion exercised by the learned Magistrate warrants no interference.
12. It is a fact that D2(A2)-the father of A1 died. As far as A3-the mother of A1 is concerned there is nothing to implicate her in the crime specifically and precisely and as such, the discretion exercised by the learned Magistrate on that ground also warrants no interference.
13. Ultimately, I am of the view that the acquittal of A1 by the lower Court for the offence under
Section 498-A alone warrants interference, as ex facie and prima facie there is evidence, which should have been considered by the learned Magistrate in proper perspective in the wake of the precedents. But after narrating the facts, the learned Magistrate simply jumped to the conclusion as though the interested testimony of the witnesses should not be believed for recording a conviction under
Section 498-A IPC, wherefore, such a finding and the consequential acquittal of A1 for the offence under
Section 498-A alone is set aside and the matter is remitted back to the Magistrate, who is expected to deal with the matter au fait with law in the light of the precedents and au courant with facts within a period of three months from the date of receipt of copy of this order.
The criminal revision case is ordered accordingly.
Msk To
1. The Judicial Magistrate No.1, Mettur Dam
2. The Public Prosecutor, High Court