Madras High Court
Gunasekaran vs State Rep. By on 29 June, 2022
Crl.R.C.No.398 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.398 of 2019
Gunasekaran .. Petitioner
Versus
State rep. by
The Sub-Inspector of Police,
W-22, All Women Police Station,
Mylapore, Chennai. .. Respondent
.
Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to
call for records and set aside the judgment dated 18.12.2018 in C.A.No.445 of
2018 passed by the learned XVII Additional Judge, XVII Additional City Civil
Court, Chennai, confirming the judgment dated 30.07.2018 in C.C.No.736 of
2012 passed by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai.
For Petitioner : Mr.R.Rajarathinam
For Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl.Side)
------
ORDER
This revision is filed by the petitioner, who was the first accused in Crime
No.07 of 2011 on the file of the W-22, All Women Police Station, Mylapore,
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Chennai. On a complaint by one Hema, who was wife of the petitioner, on
allegation of not returning her jewells and articles and threatening her and
committing cruelty and harassment on her, the case was registered for the offence
under Sections 498(A), 406 and 506(i) of IPC.
2 The case was taken up for investigation by the Inspector of Police-
P.W.5 and a charge sheet was laid showing the accused guilty of the above
offence. Upon being furnished copies as per Section 207 Cr.P.C. and upon
questioning the petitioner herein, who was A1 and his parents being A2 and A3,
denied the charges and stood trial. So as to bring home the charges, prosecution
examined P.W.1 Hema wife of the petitioner, mother of the said Hema as P.W.2,
one Govindaraj father of P.W.1 as P.W.3, one Jamuna, who is the Neighbour as
P.W.4 and the Investigating Officer as P.W.5, on behalf of the prosecution. The
complaint lodged by P.W.1 was marked as Ex.P1, list of Sridhana given was
marked as Ex.P2, the judgment in M.C.No.3 of 2012 as Ex.P3, list of articles
given to P.W.1 for the marriage as Ex.P4, Legal notice issued as Ex.P5, reply
notice as Ex.P6, Report of the Social Welfare Officer as Ex.P7, First Information
Report as Ex.P8 and the Marriage Invitation as Ex.P9. Upon being questioned
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about the material evidence on record and the incriminating materials under
Section 313 of Cr.P.C., the petitioner and the other accused denied the same.
Thereafter on behalf of the defence, one Dhanalakshmi, the Doctor, who treated
P.W.1 was examined as D.W.1 and one Shanthi, the Social Welfare Officer, who
gave report was examined as D.W.2. The prescription given by D.W.1 was
marked as Ex.D1, evidence of P.W.1 before the Family Court was marked as
Ex.D2 and the report of the Social Welfare Officer was marked as Ex.D3.
Thereafter the trial Court proceeded to hear the learned Public Prosecutor and the
learned counsel for the accused and by a judgment dated 30.07.2018, acquitted
the second and third accused, who are the parents of the petitioner/A1, even
acquitted the petitioner in respect of the offence under Section 406 and 506(i) of
IPC, however convicted the petitioner/A1 for the offence under Section 498(A)
of IPC and imposed the sentence of two years rigorous imprisonment and fine of
Rs.1,000/- and in default, to undergo simple imprisonment for a further period of
two months.
3 Aggrieved by the same, the petitioner filed a criminal appeal in
C.A.No.445 of 2018 and by judgment dated 18.12.2018, the learned XVII
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Additional City Civil Court, Chennai, dismissed the appeal and confirmed the
conviction and sentence imposed by the trial Court. Aggrieved by the same, the
present revision is filed.
4 Heard Mr.R.Rajarathinam, learned counsel appearing for the
petitioner and Mr.S.Vinoth Kumar, Government Advocate (Crl.Side) appearing
for the respondent police and perused the materials available on record.
5 The learned counsel appearing for the petitioner taking this Court
through the entire evidence on record and the findings of the Courts below,
would contend that P.W.1 has made three sets of allegations as against the
accused. The first allegation is that she was taken to various temples forcibly
even after her refusal with an intention to cause miscarriage to her and even
though she resisted, however, she went to the temples along with them, on
account of which, she had miscarriage and the same according to her amounted to
cruelty. The second allegation is that when the petitioner and herself were
intimately in physical relationship, the petitioner called his friend and spoke
about the organs of the defacto complainant and the same is amounted to cruelty.
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This apart, the learned counsel would submit that her primary allegation is that
joining hands with the second and third accused, the petitioner tortured the
defacto complainant mentally and physically during her matrimonial life for the
period of seven months, on account of which she had left the matrimonial home.
The learned counsel would submit that the trial Court disbelieved the evidence of
the prosecution witnesses as against the second and third accused and hence all
the allegations made against the petitioner/A1 in connection with the A2 and A3
goes. As matter of fact, the trial Court has expressly relied on the above said two
allegations, taking the defacto complainant to the various temples and speaking
with his friend about the inmate relationship, as amounting to cruelty and only on
the same the petitioner has been convicted and sentenced as aforesaid.
5.1 The learned counsel would further submit that as far as the first
incident is concerned the defence has examined the Doctor, who had treated the
victim, as D.W.1 and she has opined through Ex.D1 that the pregnancy in which
the fertilized egg implants outside the uterus and embryo formed in fallopian tube
is abnormal. Prosecution has not further proved that the miscarriage was only
caused by the said pressure of the accused and such proof cannot be expected
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Crl.R.C.No.398 of 2019
from the accused. On the other hand, it is the prosecution to prove that the
miscarriage caused only by the act of the accused taking her to the various
temples. In this case, except examination of P.W.1, prosecution has not produced
any medical records of the defacto complainant even for proving the factum of
miscarriage. He would further submit that it is natural for the parents to take the
newly wedded couple to the temples and such act cannot be termed as cruelty.
Therefore, he would submit that the first allegation is not proved beyond any
reasonable doubt by the prosecution.
5.2 As far as second allegation is concerned, the learned counsel would
fairly submit that the accused has not cross examined P.W.1 and therefore the said
incident has to be termed as correct. He would further submit that even assuming
that the said incident is correct, it is an insensitive act of the petitioner to have
spoken about the inmate relationship to his friend and the said act can be termed
as cruelty, which can be a ground for dissolving the marriage, but, not to punish
the petitioner for the offence under Section 498(A). The definition of cruelty has
been specifically provided by the IPC by way of explanation to Section 498 (A)
which would clearly state that 'cruelty' means any wilful conduct which is of such
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a nature as is likely to drive the woman to commit suicide, which is not one in the
instant case or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman and it is the second limb, which has to be
examined by this Court that whether the said act can be construed as grave injury
to the mental health of the victim. According to him since the victim continued to
live together normally thereafter and a perusal of the legal notice and reply notice
clearly show that there was harassment on the part of the in-laws and since the
petitioner did not meet the demand of setting up separate residence, she was
unable to live in the same house and therefore she was separated. Therefore, he
would submit that in this case, the findings of the Courts below based on the
strength of the two allegations are perverse. To support his contentions, the
learned counsel would also rely on the judgment of the Hon'ble Supreme Court
reported in 2009 13 SCC 330 whereby, the Supreme Court has held that the act of
the mental cruelty should be continuous in nature so as to cause grave injury to
the wife. Therefore, the learned counsel appearing for the petitioner prays to
allow this revision by acquitting the petitioner from the offence under Section
498(A) of IPC.
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6 Per contra, the learned Government Advocate (Crl.Side) appearing
for the respondent police would submit that whether a particular act amounted to
unbearable cruelty or not depends on the circumstances of the case. In this case,
the wife had felt torture and trouble on account of acts of the husband. In spite of
her resistance, she was taken to all those temple, which caused physical and
mental cruelty. Being a newly wedded wife, she had conveyed to the husband
not to take her as she is not feeling comfortable and when the petitioner has not
responded to her and behaved rudely, the wife is unable to bear the same, which
certainly would amount to mental cruelty. Further, the petitioner had spoken
about the inmate relationship to his friends and therefore the trial Court as well as
the lower appellate Court have rightly convicted the petitioner and there is no
merit in the revision.
7 I have considered the rival submissions made by both the learned
counsel and perused the materials available on record.
8 As rightly pointed out by the learned counsel appearing for the
petitioner even though several allegations are made, except the above two
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allegations, all the other allegations are commonly made against all the three
accused. As far as first incident is concerned, in the normal course, the conduct of
the petitioner in taking the newly wedded wife to the temples may not be per se
taken as mental torture. It would be mental torture had the prosecution had
proved that the miscarriage was caused on account of such act. In this case, even
though the trial Court as well as the lower appellate Court have held that the
further proof to the Ex.D1 is not placed before the Court, the Courts below
miserably failed to note that it is for the prosecution to bring home the fact as to
the reason for miscarriage. Therefore reasoning of the trial Court as a matter of
fact shifting the burden on the accused is unsustainable in law. There is no
presumption for the offence under Section 498(A) is concerned and it is for the
prosecution to prove the same. Therefore I am of the considered view that the
finding of the trial Court is unsustainable in law.
9 As far as second incident is concerned, as rightly pointed out by the
learned Government Advocate (Crl.Side) in this case, the petitioner had spoken
about the inmate relationship to his friend, which fact was not challenged by the
defence during cross examination. Therefore pleading of the learned counsel that
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Crl.R.C.No.398 of 2019
there was no continuous conduct cannot be accepted by this Court, since as
observed by the Hon'ble Supreme Court in the case cited supra the term cruelty is
depends upon the nature of allegations. But however, as rightly pointed out by
the learned counsel for the petitioner the said act of the petitioner may be a
ground for the purpose of granting of divorce. But for the purpose of convicting
the petitioner for the offence under Section 498(A), as there is clear explanation
to Section 498 (A) IPC, mere cruelty is not enough and the cruelty to the extent
of causing grave injury to mental health is required for the purpose of convicting
the person. The victim continued to live even after the said incident and a perusal
of the legal notice and reply notice clearly show the petitioner did not meet the
demand of establishing of separate residence and hence she separated. Therefore,
the act complained was not such grave in nature and which was not unbearable to
her. I am of the view even though this act amounts to cruelty to P.W.1, the defacto
complainant, it was not such grave in nature and therefore such allegation does
not amount to offence under Section 498(A). Hence I am in agreement with the
submissions of learned counsel appearing for the petitioner. In this case
prosecution has failed to prove any other allegation which would amount to
cruelty so as to convict the petitioner for the offence under Section 498(A).
Therefore this Court has no hesitation to exercise its power under revision.
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10 For the foregoing reasons and observations, this criminal revision is
allowed and the judgment dated 30.07.2018 in C.C.No.736 of 2012 passed by the
learned XVIII Metropolitan Magistrate, Saidapet, Chennai and the judgment
dated 18.12.2018 in C.A.No.445 of 2018 passed by the learned XVII Additional
Judge, XVII Additional City Civil Court, Chennai, are hereby set aside. Fine
amount, if any paid by the petitioner shall be refunded to him forthwith.
29.06.2022
Index : yes/no
Speaking/Non-speaking order
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To
1. The XVII Additional Judge,
XVII Additional City Civil Court, Chennai
2. The XVIII Metropolitan Magistrate, Saidapet, Chennai.
3. The The Sub-Inspector of Police,
W-22, All Women Police Station,
Mylapore, Chennai.
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Crl.R.C.No.398 of 2019
D.BHARATHA CHAKRAVARTHY, J.,
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Crl.R.C.No.398 of 2019
29.06.2022
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