For the sake of convenience, the parties will be referred to by their name.
2.1 Palaniappa (A3) got married to Manimegalai on 15.04.2005 and their marriage ran into rough weather. Manimegalai committed suicide on 02.09.2005 and on a complaint lodged by her uncle Nandhakumar, the Inspector of Police, Virudhachalam Police Station, registered a case in Crime No.327 of 2005 and took up investigation.
2.2 Since Manimegalai had died within 7 years of marriage, inquest was conducted by the Executive Magistrate and investigation was taken over by the Deputy Superintendent of Police. After completing the investigation, the police filed a final report for the offences under
Sections 498-A and
304(B) of IPC against Rajavel (A1), Malarkodi (A2) and Palaniappa (A3).
2.3 Rajavel (A1) and Malarkodi (A2) are the parents of Palaniappa and the parents-in-law of the deceased Manimegalai.
2.4 The case was committed to the Court of Sessions in S.C.No.158 of 2007 and the trial was led by Mahila Court, Cuddalore against Rajavel (A1), Malarkodi (A2) and Palaniappa (A3) and they were acquitted of the charges under
Sections 498-A and
304(B) of IPC by order dated 12.12.2007 of the case in Crime No.327 of 2005.
2.5 Radhakrishnan, father of the deceased Manimeglai, filed a private complaint dated 05.06.2006, before the learned Judicial Magistrate No.I, Virudhachalam against Rajavel, Malarkodi and Palaniappa, for the offence under
Section 6 of the Dowry Prohibition Act, alleging that they had taken 234 grams of gold jewellery and had not returned the same, even after the death of Manimegalai.
2.6 In normal circumstances, the learned Magistrate ought not to have taken this case on file, especially, in view of the fact that the prosecution under
Sections 498-A and
304(B) of IPC was pending against the accused in Crime No.327 of 2005, which would have taken care of the grievance of Radhakrishnan.
2.7 Be that as it may, the complaint of Radhakrishnan was taken on file as C.C.No.208 of 2007 as a private complaint and summons was issued to the accused.
2.8 On the appearance of the accused, charge for the offence under
Section 6 of the Dowry Prohibition Act was framed and when they were questioned, they pleaded not guilty.
2.9 On behalf of the complainant, 6 witnesses were examined and 2 Exhibits were marked. On behalf of the accused, 6 Exhibits were marked. The trial Court, after considering the evidence adduced by the complainant, acquitted the accused by order dated 11.02.2011, aggrieved by which, the complainant is before this Court by filing appeal against acquittal.
3. Heard Mr.G.Anabayachozhan, learned counsel for the complainant/appellant and Ms.Jayanthi Venkatesh, learned counsel for the accused.
4. Mr.G.Anabayachozhan, learned counsel for the complainant submitted that the trial Court had failed to appreciate the evidence of the prosecution witnesses, who have asserted that they had handed over to the accused 234 gms of gold jewellery, which the accused were illegally retaining.
5. Learned counsel for the accused refuted the contention.
6. This Court gave its anxious consideration to the rival submissions.
7. In Arulvelu vs. State represented by the Public Prosecutor and another reported in 2009 (10) SCC 206, the Hon'ble Supreme Court has held as follows:-
36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate Court should be very slow in setting aside a judgment of acquittal, particularly in a case where two views are possible. The trial Court Judgment cannot be set aside because the appellate Courts view is more probable. The appellate Court would not be justified in setting aside the trial Court Judgments unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial Court is either perverse or wholly unsustainable in law.
8. As stated above, in the opinion of this Court, the present prosecution of the accused itself is an abuse of process of law, inasmuch as the accused were facing a prosecution for serious offences under
Sections 498-A and
304(B) of IPC, where the burden is on the accused to prove their innocence under Section 113 (B) of the Evidence Act. The facts in the complaint got telescoped into the charge sheet, that was laid against the accused in S.C.No.158 of 2007. Admittedly, Radhakrishnan is none other than the maternal uncle of Palaniappa that is brother of Malarkodi (A2) and that is why, the marriage of Manimegalai with Palaniappa was solemnized. There was no credible evidence adduced by the complainant to show that the gold jewellery weighing 234 gms were given to the accused.
9. That apart, the learned counsel for the accused submitted that as against the acquittal in S.C.No.158 of 2007, an appeal was filed and that too was dismissed by this Court on 05.11.2014. Had there been recovery of the household articles and ornaments that are said to have been handed over by the complainant to the accused, then, they would have been marked as material objects before the Sessions Court and it would have been available for the parties, after the culmination of the prosecution. Such a course was not adopted in this case.
10. In such view of the matter, this Court is of the view that this is not a fit case in which leave to appeal requires to be granted. Accordingly, the Criminal Original Petition is dismissed and the Criminal Appeal is dismissed at the SR stage itself.
15.11.2017 rg To
1.The Judicial Magistrate No.I, Vridhachalam
2. The Public Prosecutor, High Court, Madras.
P.N.PRAKASH,J rg Crl.A.Sr.No.7983 of 2012 and Crl.O.P.No.19168 of 2016 15.11.2017