Madras High Court

Rajamahalingam vs The State Rep. By on 11 January, 2023

                                                                           Crl.A.Nos.102 & 192 of 2015


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 11.01.2023

                                                    CORAM

                                  THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                            C.A.Nos.102 & 192 of 2015

                  1.Rajamahalingam                      ... Appellant in C.A.No.102 of 2015
                  2.A.K.Palraj
                  3.Dhanalakshmi                       ... Appellants in C.A.No.192 of 2015
                                                     Versus
                  The State rep. by
                  Inspector of Police,
                  W-21, All Women Police Station,
                  Guindy, Chennai.
                  (Crime No.1/2012).                    ... Respondent in C.A.No.102 of 2015

                  The state rep. by
                  The Inspector of Police,
                  All Women Police Station,
                  Guindy, Chennai.                      ... Respondent in C.A.No.192 of 2015

                  PRAYER in Crl.A.No.102 of 2015: Criminal Appeal filed under Section 374
                  of Cr.P.C., against the judgment of Learned Mahila Sessions Judge at
                  Chennai in S.C.No.331 of 2013 by judgment dated 10.02.2015, convicting
                  the appellant herein under Sec.498(B) to undergo one year rigorous
                  imprisonment with fine of Rs.5,000/- in default 3 months imprisonment and
                  under Sec.313 of IPC to undergo 10 years Rigorous Imprisonment with fine
                  of Rs.10,000/- in default 6 months simple imprisonment.

                  PRAYER in Crl.A.No.192 of 2015: Criminal Appeal filed under Section
                  374(2) of Cr.P.C., against the judgment of Learned Mahila Judge at Chennai,
                  dated 10.02.2015 passed in S.C.No.331 of 2013 convicting under Sec.498(b)
                  of IPC to undergo for one year Rigorous Imprisonment with fine of
                  Rs.5,000/- and in default 3 months imprisonment under Sec.498(B) of IPC.

https://www.mhc.tn.gov.in/judis
                  Page 1 of 30
                                                                             Crl.A.Nos.102 & 192 of 2015


                                  For Appellants
                                  in both appeals :    Mr.T.Padmanabhan
                                  For Respondents
                                  in both appeals :    Mr.L.Baskaran,
                                                       Government Advocate (Crl. Side)

                                                       *****

COMMON JUDGMENT

These Criminal Appeals filed by the appellants/A1 to A3 against the

judgment of conviction and sentence passed by the learned Mahila Sessions

Judge, Chennai in S.C.No.331 of 2013, vide judgment, dated 10.02.2015.

2.The appellants were convicted for offence under Section 498(A) IPC

and sentenced to undergo one year Simple Imprisonment each and to pay a

fine of Rs.5,000/- each, in default, to undergo three months Simple

Imprisonment each. Similarly, the 1st appellant alone was convicted for

offence under Section 313 IPC and sentenced to undergo ten years Rigorous

Imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo six

months Simple Imprisonment. The 1st appellant was acquitted from the

charges under Section 294(b) IPC and the 2nd & 3rd appellants were acquitted

from the charges under Section 313 r/w 34 IPC.

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

3.The case against the appellants, are as follows:-

(i)The appellants are husband, father-in-law and mother-in-law of

PW1/defacto complainant respectively. The marriage between PW1 and the

1st appellant held on 28.03.2009 at Meenakshi Amman Temple, Vadipatti

village as per Hindu Rites and Customs. After the marriage, PW1 and the 1st

appellant started their matrimonial life at Velacherry, Chennai. Twenty five

years prior, PW1's parents went to Erode for their business and survival and

for the past seven years, they have been doing business of making eatables.

PW1 is the eldest daughter of PW2 and she has one sister and two brothers.

Three years prior to the complaint (Ex.P1), PW4/Uncle of PW1 informed

PW2 that the 1st appellant completed M.C.A employed in HCL Company at

Chennai and earning monthly salary around one lakh and that the 1st

appellant earlier marriage ended in divorce and he has 2½ years minor child

Varshini and interested to marry PW1 as second wife. PW2/Father of PW1

got convinced seeing the Divorce Order (Ex.D1) of the 1st appellant with one

Manju. The appellants convinced PW2 that they would settle house property

situated at Velangudi, Madurai in the name of PW1 as security. After the

marriage, PW1 came to know that the 1st appellant had married yet another

girl prior to marriage with said Manju and this marriage suppressed.

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

(ii)Prior to the complaint (Ex.P1), PW1 was taking care of the minor

child of the 1st appellant Varshini. When PW1 was 5½ months pregnant, the

2nd & 3rd appellants objected the same for the reason if she gives birth to a

child, she would not neglect Varshini. The appellants gave tea mixed with

some tablets, after drinking the tea, the fetus got ejected, she was admitted in

the Apollo First Medical Hospital, Chennai for the same. When the parents

of PW1 went to meet her, they were not allowed. PW1 was informed that her

parents sold her to the appellants family and she was subjected to cruelty,

harassment, torture. Thereafter, she was sent along with the 2nd & 3rd

appellants to Madurai, where the house property settled in her favour earlier,

was reconveyed in favour of the 1st appellant.

(iii)After four months, PW1 got pregnant for two months. Again

objections were raised by the appellants and they forced her to abort fetus

and also threatened that if PW1 resisted the same, she will not be allowed to

continue to be a wife of the 1st appellant and she will be divorced. On

23.03.2011, PW1 was taken to Dhanvanthiri Hospital, Velacherry, where

PW8/Doctor enquired the reason for abortion and gave medicines to abort

the fetus. On the same day, at about 10.00 p.m., one tablet was given. On

24.03.2011, at about 06.00 a.m., and at about 02.00 p.m., another tablet https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

given. On the same day, at about 08.00 p.m., the fetus got ejected from

PW1's abdomen. After few days, the 1st appellant insisted PW1's abdomen to

be scanned to confirm the abortion. Since PW1 was not feeling well and

having some health issues often, she was taken to Madurai, where on

30.07.2011, she was taken to Gayathri Hospital and the appellants planned

for family planning to her.

(iv)Unable to bear any further, PW1 took rupees fifty from her mother-

in-law, left the matrimonial home, joined her parents and she was living with

them for six months without any contact with appellants. Thereafter, the 1st

appellant lodged a complaint (Ex.D3) with Koodal Puthur Police Station as

though PW1's parents were demanding money for allowing him to join PW1.

On 27.08.2011, Koodal Puthur Police called for enquiry, but the appellants

failed to appear. Thereafter, again another complaint (Ex.D2) was lodged

with Samayanallur Police Station by the 1st appellant.

(v)PW1 lodged the complaint (Ex.P1) with the All Women Police

Station, Samayanallur about the harassment, abuse and forcible abortion by

the appellants and a case in Crime No.11 of 2011 (Ex.P6) was registered,

thereafter, on the point of jurisdiction, Ex.P6 was transferred to the file of the https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

Inspector of Police/PW11, All Women Police Station, Guindy on 17.09.2011

and Ex.P6 was renumbered as Crime No.1 of 2012 (Ex.P9).

PW11/Investigating Officer, on completion of investigation filed the charge

sheet before the trial Court.

4.On the side of the prosecution, as many as 11 witnesses examined as

PW1 to PW11 and 10 documents marked as Exs.P1 to P10. On the side of

the defence, the 1st appellant examined himself as DW1 and marked four

documents as Exs.D1 to D4.

5.When the appellants were questioned under Section 313 Cr.P.C.,

about the incriminating circumstances appearing against them, they denied

the same.

6.The trial Court, on the basis of the oral and documentary evidence,

convicted and sentenced the appellants as aforesaid and challenging the

legality of the said conviction and sentence, the present appeals have been

filed.

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

7.The submissions of the learned counsel for the appellants, are as

follows:-

(i)The admitted case is that the appellants had never demanded any

dowry from PW1's family for the marriage held on 23.03.2009. During

marriage minimum jewels were presented and there was no presentation of

any sridhana articles. The 1st appellant's matrimonial status as divorce is well

known to PW1 and her family members. PW4 approached PW2/Father of

PW1 and informed about divorced marriage of the 1st appellant and about the

1st appellant's minor daughter Varshini. The family members of PW1

accepted the proposal, with the concurrence of both family members, the

marriage between the 1st appellant and PW1 took place on 23.03.2009 at

Meenakshi Amman Temple, Vadipatti. Immediately after the marriage, PW1

and 1st appellant stayed at Chennai, started their matrimonial life at

Velacherry and Perungudi. PW3/House Owner confirmed the 1st appellant

and PW1 living as husband and wife. PW5, the neighbour of the 1 st

appellant stated that he used to visit the 1st appellant in his house and

confirmed they living happily as husband and wife. The learned counsel

further submitted that PW1 on her own used to visit her parents often

without informing the appellants. In this case, the 1st appellant employed in

HCL Company at Chennai and his parents/2nd & 3rd appellants residing at https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

Madurai. On occasions, PW1 used to visit her parents at Erode.

(ii)The learned counsel further submitted that the parents of PW1

taking advantage of the 1st appellant's family condition, they started

demanding money and property. The story projected by PW1 is highly

imaginary. PW1 in her evidence on one hand stated that a tea mixed with

tablets given by appellants caused abortion of her child, on the other hand,

she stated that when the 2nd & 3rd appellants were leaving to Madurai, PW1

along with the 1st appellant went to Egmore Railway Station for see off, at

that time, bleeding started, immediately, PW1 was taken to Apollo First

Medical Hospital, Chennai, where PW9/Doctor gave treatment to her and

took scan finding profuse bleeding, she was admitted as inpatient and finally,

fetus got ejected. The evidence of PW9 and the medical records (Ex.P2)

confirmed there was no forcible abortion. Thus, the appellants exerted no

pressure or compelled PW1 to abort her child. Due to medical condition, the

abortion had taken place. This abortion happened on 01.11.2009. The

second abortion projected is on 23.03.2011 at Dhanvanthiri Clinic,

Velacherry, where PW8, the Doctor, who examined PW1 and ejected fetus

from PW1. PW8 was informed by PW1 that her menstrual cycle stopped and

she requested for medicine. On her request medicine was given and one https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

week thereafter, PW1 came and informed that her menstrual cycle

commenced again. PW7 is the another Doctor, who took scan on the

reference of PW8. The scan report is Ex.P4. Thus, from the evidence of

PW7, PW8 & PW9 and Exs.P2 & P4, it can be seen that there was no

forcible abortion to PW1.

(iii)The learned counsel further submitted that the first abortion took

place in the year 2009 and the second one in the year 2011. The third

incident, which is projected against the 1st appellant is that on 30.07.2011,

she was taken to Gayathiri Hospital at Madurai by the appellants for family

planning, where the medical prescription (Ex.P5) was issued. Ex.P5 is a

medical prescription to improve PW1's health and nothing more. Thus, PW1

gives exaggeration version during trial. PW11/Investigating Officer

admitted that PW1 gave exaggerations and contradictory statement during

trial. PW2/father of PW1 admitted that he is not aware of the entire

happenings and it is only PW1, who informed him about her hospital visit

and forcible abortion of child by the appellants.

(iv)PW4/the relative was informed about the harassment and cruelty

by PW1 and PW2. PW6/another relative, who visited PW1 in the hospital https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

while she undergone abortion, admitted that at that time 1st appellant was

besides PW1 in the hospital nursing her. With regard to PW1 leaving to her

parents hom without informing her husband/1st appellant, PW6 confirmed on

the complaint of PW1, the 1st appellant was called for enquiry.

PW10/Inspector of Police, All Women Police Station, Samayanallur stated

that PW1 lodged the complaint against the 1st appellant which was number as

C.S.R.No.326 of 2011 and further, on 17.09.2011, an FIR in Crime No.11 of

2011 (Ex.P6) was registered and transferred the same to the All Women

Police Station, Guindy on the point of jurisdiction. PW11/Inspector of

Police, Guindy, who on receipt of Ex.P6, renumbered the FIR in Crime No.1

of 2012 (Ex.P7), took up the investigation, examined the witnesses and filed

the final report in this case.

(v)He further submitted that the 1st appellant examined himself as

DW1 and marked Exs.D1 to D4 to prove the fact that it was PW1, who

voluntarily left the matrimonial home without informing any one. The 1st

appellant lodged a complaint (Ex.D3) with Koodal Puthur Police Station,

during enquiry, PW1 categorically stated that she is not interested to join the

matrimonial home and she wanted divorce and to live alone. Since the issue

cannot be decided by Koodal Puthur Police, the complaint of the 1 st appellant https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

was closed and they were requested to approached the All Women Police,

Samayanallur. In Ex.D3, the 1st appellant confirmed the earlier complaint

(Ex.D2) lodged with the All Women Police Station, Samayanallur Police.

During enquiry by All Women Police, Samayanallur, PW1 showed no

interest to join the matrimonial home. Ex.D1 is the medical report from the

Apollo Hospital, Chennai, which confirms the ejection of fetus from PW1

was not by compulsion or force and it was due to profuse bleeding. The

learned counsel produced the divorce order (Ex.D1) of the 1st appellant with

one Manju in H.M.O.P.No.248 of 2008.

(vi)The learned counsel further submitted that except PW1, the other

witnesses examined on the side of the prosecution are in the nature of

hearsay. The prosecution witnesses are in favour of the appellants. The

Doctors/PW7 to PW9 confirmed that there was no forcible abortion by the

appellants. Hence, looking the case from any angle, the appellants are

entitled for acquittal.

(vii)In support of his submissions, the learned counsel for the

appellants relied on the decision of the Hon'ble Apex Court in the case of

“Prabhu @ Kulandaivelu Versus the State of Tamil Nadu in Criminal https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

Appeal No.1178 of 2011”. The relevant portion of the decision is extracted

hereunder:-

“(9) The essential ingredient of Section 313 I.P.C. is that “Causing miscarriage without woman’s consent”. But as per the evidence of Dr. Valli (PW-8) consent of PW-1 was taken and, therefore, it cannot be said that the ingredients of Section 313 I.P.C. has been established by the prosecution. (10) That apart, as seen from the evidence of PW-8, even when PW-1 was brought to the hospital, she was already bleeding and had lower abdominal pain and there was nothing in evidence to connect that act with the appellant-accused. In the light of evidence of Dr. Valli (PW-

8) and other evidence, the conviction of the appellant under Section 313 I.P.C. cannot be sustained and is liable to be set aside.”

8.The learned Government Advocate (Crl. Side) appearing for the

respondent Police filed counter and submitted that PW1/the defacto

complainant lodged the complaint (Ex.P1) with the All Women Police

Station, Samayanallur. PW10/Inspector of Police received the complaint,

registered the FIR (Ex.P6) and on the point of jurisdiction, transferred the

same to the file of the Inspector of Police, All Women Police Station, Guindy

and renumbered that as Crime No.1 of 2012 (Ex.P9). PW11/Investigating https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

Officer took up investigation, enquired witnesses including Doctors/PW7 to

PW9, who treated PW1, collected medical certificates and other documents,

on completion of investigation, filed charge sheet before the trial Court.

During trial, PW1 stated about the marriage between her and 1st appellant

held on 23.05.2009 at Meenakshi Amman Temple, Vadipatti village. This

marriage was arranged by PW4/the relative of PW1. It was the 1st appellant

and his family members, who approached PW4 to arrange marriage with

PW1. He further submitted that the appellants approached PW4, informed

that the 1st appellant is a MCA graduate and he was employed in HCL

Company at Chennai and earning monthly salary of one lakh and he would

take proper care of PW1 and ensure all comfort in life. The appellants

suppressed the fact of 1st appellant marriage with another girl prior to

marriage with Manjula which got terminated in the Police Station. The 1st

appellant's marriage with PW1 was only to ensure PW1 to take care of his

minor daughter Varshini. Whenever PW1 became pregnant, she was forced

to abort the fetus. But the appellants cleverly projected the same it was

either as an accidental one or voluntarily done, but not on compulsion.

9.He further submitted that since PW1 after completed her schoolings,

not exposed to new environment, she was unable to disclose the true https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

happenings to Doctors/PW7 to PW9 and others. The appellants prior to the

marriage, to gain confidence and to project themselves as selfless people, had

settled the house property in favour of PW1 and after the marriage, PW1 was

harassed, tortured and the property was reconveyed in favour of the 1 st

appellant. During the short period of marriage life, twice PW1's pregnancy

was aborted by the appellants and she was forced to stay with the appellants

to take care of her minor child Varshini. Added to it, when she was in

Madurai, PW1 was taken to Gayathiri Nursing Home for family planning,

PW1 realizing that at any cost she cannot forbear any child and she would

only be a foster mother throughout the life of Varshini, hence, she left the

matrimonial life and joined her parents and lodged the complaint (Ex.P1).

10.It is further submitted that the 1st appellant to create defence,

lodged two complaints one with Koodal Puthur Police Station (Ex.D3) and

another complaint with the All Women Police Station, Samayanallur

(Ex.D2). The evidence of PW1, her father/PW2 as well as her uncle/PW4

and her relative/PW6 confirm forcible abortion and threat on PW1 at various

hospitals at the instance of the appellants.

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

11.He further submitted that after pronouncing judgment of conviction

by the trial Court, dated 10.02.2015, the 1st appellant was confined to the

Central Prison, Puzhal and thereafter, his sentence was suspended by this

Court during the pendency of the present appeals, on 15.04.2015. Since the

appellant as well his counsel failed to appear before this Court for

arguments, this Court cancelled the suspension of sentence on 06.11.2022, as

a result, the 1st appellant was arrested and confined in Central Prison, Puzhal.

Now, the 1st appellant is in prison from 06.11.2022 for 135 days. The trial

Court on the evidence of PW1, PW2, PW4, PW6 and Doctors/PW7 to PW9

and the medical records (Exs.P2 & P4), had rightly convicted the appellants.

Hence, he prayed for dismissal of appeals.

12.This Court considered the rival submissions and perused the

materials available on record.

13.In this case, the anchor witness is PW1/defacto complainant. PW1

stated that on 23.03.2009, she married the 1st appellant, immediately after the

marriage, they started to live at Velacherry, Chennai. Thereafter, they moved

to another house at Perungudi, Chennai. PW1 further stated that she became

pregnant few months after the marriage, she suspected some tablets mixed in https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

tea given to her is the reason for abortion of fetus on 01.11.2009. When the

2nd and 3rd appellants were leaving to Madurai, PW1 along with 1st appellant

went to Egmore Railway Station to see off them. At that time, bleeding

started, immediately, PW1 was taken to Apollo Hospital, Chennai for

treatment. PW9/Doctor finding profuse bleeding took scan and admitted

PW1 as inpatient and finally, the fetus got ejected. After two days of

treatment, she was discharged from the hospital. In the meanwhile, the

parents of PW1 came to visit her, but the appellants refused to allow them to

meet PW1.

14.From the evidence of PW9 and on the medical records (Ex.P2)

issued by PW9, it is confirmed that on 01.11.2009, PW1 came as emergency

patient with 16 weeks pregnancy with bleeding vaginally with history of pain

abdomen. PW9 was informed by PW1 that she was married seven months

back. Since PW1 was bleeding profusely, abortion was carried out, finally,

the fetus got ejected after six hours of treatment. Thereafter, she was

discharged on 02.11.2009. PW9 in her evidence confirmed the spontaneous

abortion which is not uncommon and it is a normal one. PW1 not made any

complaints to PW9 during treatment. Thus, the happenings took place on

01.11.2009 is a natural one, abortion was spontaneous and not on force or https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

compulsion.

15.For the abortion of PW1 on 23.03.2011, it is relevant to peruse the

evidence of PW8/Dr.Madhulika of Dhanvanthiri Hospital, Velacherry. PW8

stated that it was PW1 and A1, who came together and it was PW1, who

informed about menstrual period stoppage and sought some medicine. PW8

administered medicine and fetus was aborted. This is a voluntary one and

not on compulsion or by force. Ex.P4/scan report issued by PW7 confirms

the voluntariness of PW1 for abortion. PW1 had never made any objection

to PW8/Dr.Mathulika and PW9/Dr.Moni Bansal while seeking abortion of

fetus. Due to strained relationship between PW1 and 1st appellant for some

other reason, now such allegations and complaint (Ex.P1) made. Added to it,

PW1 produced Ex.P5/prescription of Gayathri Hospital, Madurai to show the

appellants planned to have family planning for her. None from Gayathiri

Hospital was examined and Ex.P5 is only a medical prescription prescribing

medicines to improve the health of PW1.

16.Thus, from the evidence of PW7, PW8 & PW9 and from Exs.P2,

P3, P4, P5 & D1, it is confirmed the 1st appellant had never forced PW1 for

abortion or miscarriage. Thus, the conviction and sentenced imposed on the https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

1st appellant for offence under Section 313 IPC are not sustainable and, the

same are liable to be set aside and, are set aside.

17.As regards conviction and sentence against the 2nd & 3rd appellants

for offence under Section 498(A) IPC, again the evidence of PW1 has to be

looked into. PW1 in her evidence admitted that she knew earlier marriage of

1st appellant with Manju and the 1st appellant having minor child Varshini.

PW1 in the complaint (Ex.P1) admitted that she and her parents were

informed about the divorced marriage of 1st appellant and minor child

Varshini. Thus, PW1 contradicts her earlier statement, PW1 is a motivated

witness uttering falsehood. PW2/Father of PW1 and PW4/Uncle of PW1

confirmed that the 1st appellant and his family members/the 2nd & 3rd

appellants disclosed the entire facts about the divorced marriage of the 1st

appellant with Manju and having minor child Varshini with him. After the

marriage, PW1 was living separately with the 1st appellant at Velachery,

thereafter at Perungudi, Chennai along with minor daughter Varshini.

PW3/House Owner and PW5/Colleague confirmed PW1 and the 1st appellant

living separately as husband and wife. PW5, who was living in the same

building along with the 1st appellants, gives positive evidence in favour of

the appellants. PW5 stated due to some misunderstanding, PW1 left the https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

matrimonial home and went to her parents home. As could be seen from

Ex.D3, it is seen that since PW1 took jewels and valuables left the

matrimonial home without informing the 1st appellant, the 1st appellants

lodged the complaint with the Sub Inspector of Police, Koodal Puthur Police,

Madurai. After preliminary enquiry, the Koodal Puthur Police Station closed

the complaint of 1st appellant for the reason already a complaint (Ex.D2) was

lodged before the All Women Police Station, Samayanallur. In Ex.D2, the 1st

appellant's complaint is about PW1 leaving the matrimonial home without

information. During enquiry, on 28.06.2010, PW1 appeared before the All

Women Police Station, Samayanallur, gave written statement that she is not

interested to join her husband/1st appellant. Finding that the matrimonial

discord will be sorted out as per their family custom or through Court

recording, the same complaint closed.

18.It is to be seen that though there was often misunderstanding

between PW1 and 1st appellant, whenever joined after some break, they

developed close intimacy, for that reason, PW1 got pregnant during the year

2011. On 23.11.2011, PW1 informed missing of her menstrual cycle and

took some tablets. Thereafter, PW1 left the matrimonial home and lodged

the complaint (Ex.P1) on 28.08.2011 before the All Women Police Station, https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

Samayanallur and a case in Crime No.11 of 2011 (Ex.P6) was registered on

17.09.2011 and thereafter, on the point of jurisdiction, the FIR transferred to

file of the All Women Police Station, Guindy and renumbered as Crime No.1

of 2012 (Ex.P9) on 07.02.2012.

19.From the evidence of PW2/Father, PW4/Uncle and PW6/Relative

of PW1, it is seen that it was PW1, who informed them about harassment,

cruelty made by the appellants. From the evidence of PW2, PW4 and PW6,

it is seen that they have no direct knowledge and it was PW1, who informed

them about her abortion twice and about the harassment and cruelty by the

appellants. The evidence of PW1 is with exaggeration and contradictions,

she gives improvised version each time, which is confirmed by the

Investigating Officer/PW11. Added to it, in this case, the documentary

evidence are contradictory to the oral evidence. PW1 was well aware that

the 1st appellant is a divorcee and having a minor daughter Varshini. Despite

the same, PW1 and her family members agreed for the marriage with 1 st

appellant. Immediately after the marriage, PW1 and 1st appellant started

residing at Velacherry and thereafter, at Perungudi. PW1 used to visit the 2nd

& 3rd appellants in Madurai on occasions and also visit her parents house in

Erode. The 2nd & 3rd appellants are senior citizens, having health ailments https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

and are living separately in Madurai, which is not disputed. The only

overtact against them is that they had forced PW1 not to forbear child, since

it would affect the welfare and growth of minor child Varshini. As discussed

earlier, in the year 2009 and 2011, the abortions were either on medical

compulsion or voluntary and it was due to medical exigency and due with

her own will and not on compulsion. In this case, there is no material to

show PW1 was subjected to cruelty and harassment at the hands of the 2 nd &

3rd appellants. Hence, the conviction and sentence for offence under Section

498(A) IPC are not sustainable against the 2nd & 3rd appellants and the same

are liable to be set aside and, are set aside. Accordingly, Crl.A.No.192 of

2015 stands allowed.

20.As regards A1 is concerned, it is not seriously disputed about

settling of house property during the year 2009 in the name of PW1,

thereafter, the property had been reconveyed to PW1. The 1st appellant

lodged complaint (Ex.D2) with the All Women Police Station, Samayanallur

on 04.06.2010 complaining PW1 was forcibly taken by her parents with

ulterior motive and they demanded huge amount. The statement of PW1

reveals that she was not having good relationship and confidence with the 1st

appellant and she was not inclined to join him. After preliminary enquiry, https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

the complaint (Ex.D2) lodged to the Inspector of Police, Samayanallur was

closed as no further action required. This being so, on 17.08.2011, another

complaint (Ex.D3) was given to the Inspector of Police, Kudal Puthur Police

Station by the 1st appellant. This time complaining that PW1 took jewels,

valuables and left the matrimonial home. After enquiry, this complaint

(Ex.D3) also closed. Thus, the 1st appellant lodging the complaints with

various Police Stations against PW1 and her family members, is nothing but

an harassment. Coupled with the fact that the property assured for life of

PW1 in the year 2009 during the marriage got reconveyed in the year 2011

favouring 1st appellant, thereafter, conveniently, property sold to avoid

further encumbrance. Thus, the conduct of the 1st appellant confirms ill-

motive. From the happenings in the life of PW1 from the date of marriage to

the date of separation, it is seen that she was unable to lead a life on her own

choice and she was under pressure, constantly harassed and subjected to

cruelty by the 1st appellant. In view of the same, this Court confirms the

conviction and sentence against the 1st appellant for offence under Section

498(A) of IPC.

21.Now, the appellants filed affidavits before this Court to reconvey

the property in favour of minor child Varshini for her welfare. The relevant

portion of the affidavits are extracted hereunder:- https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

“AFFIDAVIT OF RAJAMAHALINGAM

I, Rajamahalingam, son of Palraj, Hindu, aged about 44 years, residing at No.12, Palanichamy Street, Ramamoorthy Nagar, Pudhu Vilangudi, Madurai District, now confined at Central Prison, Puzhal, Chennai, do hereby solemnly affirmed and sincerely states as follows:-

1. I humbly submit that I am the appellant herein and I preferred this present appeal against the Learned Trial Court judgment on 10.02.2015 by sentencing me me Under Section 498(A) to undergo one year rigorous imprisonment with fine of Rs.5,000/- in default 3 months imprisonment and sentencing me under Section 313 of I.P.C to undergo 10 years Rigorous imprisonment with fine of Rs.10,000/- in default 6 months simple imprisonment. The above trial conducted based upon my wife's complaint namely who is the defacto complainant.

2. 1 humbly submit that it is brought to the notice of this Honourable Court I already had a female child from my 1st wife, meanwhile we got divorced, after due intimation I married the defacto complainant on 23.03.2009 and we set up our matrimonial home at Chennai along with my female child, unfortunately the defacto complainant made conflict with me and our matrimonial life was not fruitful, in due course the defacto complainant made a complaint and the same the criminal case was registered against me at All Women Police Station, Samayanallur Madurai, further same was transferred to the respondent and the respondent filed a final report before https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

the Learned Mahila Sessions Judge at Chennai in S.C.No. 331 of 2013, thereafter the without proper appreciation the Learned Trial Court delivered judgment convicting me and my parents.

3. I humbly submit that relying upon various grounds I preferred an appeal before this Honourable Court along with interim petition for suspension of my sentence, after due discussion and my contention put forth through my counsel I got suspension of sentence for my conviction rendered by trial court, now upon discussion with my family, for interest of justice, more particularly for welfare of my female child namely Varshini now studying at 11th standard I made an idea to settle my property situated in Pudhu Vilangudi, Madurai in favour of my child namely Varshini, which is mentioned in schedule hereunder.

4. I humbly submit that the schedule mentioned property was purchased on my own earnings under proper consideration vide document No.5611/2011 dated 25.11.2011 before Joint Sub Registrar Office at Madurai, in due course I developed the property by constructed a residential home in that property for our residence. Hence there is no hindrance to settle the property to my child namely Varshini aged about 15 years. It is unfortunate to state that due to my counsel inconvenience this Honourable Court cancelled my suspension of sentence and I was taken into Central Prison at Puzhal on 06.11.2022 till the date I am undergone imprisonment.

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

5. I humbly submit that the above arrangement to be made by me for welfare and future of my child namely Varshini and to float peace amongst us and to welfare of our future prospectus, further I swear this affidavit on my own will and I undertake before this Honourable Court to settle the schedule mentioned property to my child namely Varshini after my release by order of this Honourable Court.

It is therefore prayed that this Honourable Court may be graciously pleased to record this affidavit and set aside the judgment of Learned Mahila Session Judge at Chennai in S.C.No. 331 of 2013 dated 10.02.2015 and acquit me from my charges and thus render justice.”

“AFFIDAVIT OF PAULRAJ & DHANALAKSHMI

We, Paulraj, son of Karuppa Thevar, Hindu, aged about 80 years and Dhanalakshmi, wife of Paulraj, Hindu, aged about 75 years, we residing at No.12, Palanichamy Street, Ramamoorthy Nagar, Pudhu Vilangudi, Madurai District, now temporarily came down to Chennai, do hereby solemnly affirmed and sincerely states as follows:-

1. We humbly submit that we are the appellants herein and we preferred this present appeal against the Learned Trial Court judgment on 10.02.2015 by sentencing and convicting us Under Section 498(A) to undergo one year rigorous

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

imprisonment with fine of Rs.5,000/- in default 3 months imprisonment. The above trial conducted based upon our son namely Rajamahalingam's wife complaint who is the defacto complainant.

2. We humbly submit that it is brought to the notice of this Honourable Court our son already had a female child from his 1st wife, meanwhile they got divorced, after due intimation our son married the defacto complainant on 23.03.2009 and they set up their matrimonial home at Chennai along with our granddaughter, unfortunately the defacto complainant made conflict with our son and their matrimonial life was not fruitful, in due course the defacto complainant made a complaint and the same the criminal case was registered against us at All Women Police Station, Samayanallur Madurai, further same was transferred to the respondent and the respondent filed a final report before the Learned Mahila Sessions Judge at Chennai in S.C.No.331 of 2013, thereafter the without proper appreciation the Learned Trial Court delivered judgment convicting us and our son.

3. We humbly submit that relying upon various grounds we preferred an appeal before this Honourable Court along with interim petition for suspension of our sentence, after due discussion and our contention put forth through our counsel we got suspension of sentence for our conviction rendered by trial court, now upon discussion with our family, for interest of justice, more particularly for welfare of our granddaughter

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

through our son namely Varshini now studying at 11th standard we made an idea to settle and bequeathed our property situated in Vadipatti, Madurai in favour of our granddaughter namely Varshini, which is mentioned in schedule hereunder.

4. We humbly submit that the schedule mentioned property was jointly purchased on our own earnings and savings under proper consideration vide document No.161/2007 dated 08.02.2007 before Sub Registrar Office at Vadipatti, in due course we developed the property by irrigation specialities with electric facility, now and then we are in joint possession and title of the schedule property. Hence there is no hindrance to settle the property to our granddaughter namely Varshini aged about 15 years.

5. We humbly submit that the above arrangement to be made by us for welfare and future of our granddaughter namely Varshini and to float peace amongst us and to welfare of our future prospectus, further we swear this affidavit on our own will and we undertake before this Honourable Court to settle the schedule mentioned property to our granddaughter namely Varshini.

It is therefore prayed that this Honourable Court may be graciously pleased to record this affidavit and set aside the judgment of Learned Mahila Session Judge at Chennai in

https://www.mhc.tn.gov.in/judis

Crl.A.Nos.102 & 192 of 2015

S.C.No.331 of 2013 dated 10.02.2015 and acquit us from our charges and thus render justice.”

22.Considering the passage of time and the 1st appellant taking care of

the minor child Varshini and also affidavit filed by him that he is ready to

settle the property in favour of his minor daughter Varshini and also willing

to deposit sufficient amount in the name of her for her future education and

well being, this Court modifies the sentence of imprisonment to the period of

incarceration already undergone by the 1st appellant in sofar as the offence

under Section 498(A) IPC is concerned. The fine amount paid by the 1st

appellant is confirmed.

23.In the result, Crl.A.No.102 of 2015 stands Partly-Allowed. The