Madras High Court
S.Padmanabhan ... Revision vs Pappa on 30 March, 2023
Crl.R.C(MD)Nos.798 & 799 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)Nos.798 & 799 of 2016
1.Crl.R.C(MD)No.798 of 2016:-
S.Padmanabhan ... Revision Petitioner/
Appellant/Accused No.1
Vs.
Pappa ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to set aside the Judgment dated
04.08.2016 made in Crl.A.No.32 of 2012 on the file of the learned
Mahila Court (Fast Track Court), Nagercoil, Kanyakumari District,
confirming the Judgment dated 14.03.2012 made in C.C.No.92 of
2005 on the file of the learned Judicial Magistrate No.2, Nagercoil,
Kanyakumari District.
For Petitioner : Mr.M.Jegadeesh Pandian
For Respondent : Mr.T.Selva Kumaran
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)Nos.798 & 799 of 2016
2.Crl.R.C(MD)No.799 of 2016:-
Viji ... Revision Petitioner/
Appellant/Accused No.2
Vs.
Pappa ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to set aside the Judgment dated
04.08.2016 made in Crl.A.No.33 of 2012 on the file of the learned
Mahila Court (Fast Track Court), Nagercoil, Kanyakumari District,
confirming the Judgment dated 14.03.2012 made in C.C.No.92 of
2005 on the file of the learned Judicial Magistrate No.2, Nagercoil,
Kanyakumari District.
For Petitioner : Mr.M.Jegadeesh Pandian
For Respondent : Mr.T.Selva Kumaran
COMMON ORDER
Both the revisions have been filed to set aside the
Judgment dated 04.08.2016 made in Crl.A.Nos.32 and 33 of 2012
on the file of the learned Mahila Court (Fast Track Court), Nagercoil,
confirming the Judgment, dated 14.03.2012 made in C.C.No.92 of
2005 on the file of the learned Judicial Magistrate No.2, Nagercoil.
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Crl.R.C(MD)Nos.798 & 799 of 2016
2.Both the revisions, arising out of the single trial, were
taken up together and disposed of by this common order.
3.Both the petitioners are arraigned as Accused Nos.1
and 2 in the private complaint lodged by the respondent herein for
the offence punishable under Section 494 of I.P.C.
4.The crux of the complaint is that the first accused got
married to the respondent on 09.09.2001. After their marriage, she
meted out harassment at the hands of the entire family members of
the first accused. However, she tolerated their harassment and gave
birth to a girl baby on 05.07.2003. Thereafter, there was a
continuous demand for dowry and harassment, due to which, she
was driven out from the matrimonial home. The first accused filed a
petition for restitution of conjugal rights in H.M.O.P.No.49 of 2003
on the file of the Principal Sub Court, Nagercoil and he had
undertaken to arrange a separate house from the in-laws. The
respondent believing his words went to his house. Again, the first
accused was residing in the very same house along with all in-laws.
Therefore, she refused to live with him. Subsequently, the first
accused had withdrawn his petition for restitution of conjugal rights
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Crl.R.C(MD)Nos.798 & 799 of 2016
and demanded huge dowry from the respondent. Therefore, the
respondent lodged a complaint before the Superintendent of Police,
Nagercoil at Kanyakumari District and the same was forwarded to
the file of All Women Police Station, Nagercoil and registered the
F.I.R in Crime No.11 of 2005 as against the petitioner and other in-
laws. While pending investigation, the petitioner got married the
second accused on 21.01.2005 at Thirunandhikarai Nandeeswara
Temple in the presence of other accused persons. When the first
marriage was very much subsistence, the act of the accused was
covered under the penal provisions of Section 494 of I.P.C. On
receipt of the said complaint, the trial Court had taken cognizance
for the offence under Section 494 of I.P.C r/w 109 of I.P.C as
against all the accused persons.
5.On the side of the respondent, she had examined P.W.
1 to P.W.6 and marked Exs.P.1 and P.18 and on the side of the
accused, they had examined D.W.1 and D.W.2 and marked Exs.D.1
and D.2. The respondent produced material object M.O.1.
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Crl.R.C(MD)Nos.798 & 799 of 2016
6.On perusal of the oral and documentary evidence, the
trial Court found the petitioner/Accused No.1 guilty for the offence
punishable under Section 494 of I.P.C and found the
petitioner/Accused No.2 guilty for the offence punishable under
Section 494 r/w 109 of I.P.C and the first accused was convicted for
the offence under Section 494 of I.P.C and sentence him to undergo
two years Rigorous Imprisonment and imposed a fine of Rs.1,000/-
and in default to undergo one month Simple Imprisonment and the
second accused was convicted for the offence under Section 494 r/w
109 of I.P.C and sentenced her to undergo two years Rigorous
Imprisonment and imposed a fine of Rs.1,000/- and in default to
undergo one month Simple Imprisonment. In so far as the other
accused, they were acquitted from all the charges. Aggrieved by the
same, the petitioners/Accused Nos.1 and 2 have preferred separate
appeals before Appellate Court. The Appellate Court by separate
Judgment dismissed both the appeals, confirming the conviction and
sentence imposed by the trial Court. Aggrieved by the same, the
present revisions.
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Crl.R.C(MD)Nos.798 & 799 of 2016
7.The learned counsel appearing for the petitioners in
both the revisions would submit that in order to convict a person
under Section 494 of I.P.C., one has to prove the factors i) he was
already a married man 2) at the time of the second marriage his
first wife shall be alive and 3) both the marriages shall be
solemnized in accordance with customary rites and ceremonies of
either party thereto. However, in the present case on hand, there is
absolutely no evidence to show that the marriage was solemnized in
accordance with the customary rites and ceremonies. No one has
spoken that the second marriage was solemnized between A.1 and
A.2 in accordance with Hindu rites and ceremonies. P.W.2 deposed
that he did not witness the alleged marriage, dated 21.01.2005.
Therefore, no corroborating evidence of the victim in order to prove
the charge under Section 494 of I.P.C. No independent witness was
examined by the respondent. All the witnesses are interested
witnesses and as such, the conviction is liable to be set aside.
8.The learned counsel appearing for the petitioners
would further submit that P.W.2 had never seen the tying of Thali
and there is no Thirumangalyam. Therefore, without
Thirumangalyam, no marriage can be solemnized and as such, the
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Crl.R.C(MD)Nos.798 & 799 of 2016
respondent failed to prove the second marriage in accordance with
law. Further, P.W.2 deposed that in their caste, marriage was
performed during auspicious day and time. On the date of the
alleged marriage, the auspicious time is between 09.30 a.m., and
10.30 a.m. However, the alleged marriage happened between 11.30
a.m., and 12.30 p.m. Therefore, there was no marriage solemnized
between A.1 and A.2. He further submitted that the first accused is
in the street since nobody is caring for him. While in his
employment, he sustained grievous injuries on his head and as
such, he is not in sound mind. The second accused had absolutely
no knowledge about the first marriage that exists between the first
accused and the respondent herein. Therefore, the second accused,
who is being the alleged second wife, had no knowledge about the
first marriage and as such, no charge is made out as against the
second accused.
9.Per contra, the learned counsel appearing for the
respondent would submit that after wedlock, the respondent gave
birth to a female child. Thereafter, the first accused had driven out
the respondent from the matrimonial home. He harassed the
respondent with the hands of other-in-laws. In order to escape from
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Crl.R.C(MD)Nos.798 & 799 of 2016
the said clutches of law, the first accused filed a petition for
restitution of conjugal rights believing his words and undertaking
again the respondent, joined with him. Unfortunately, again he
tortured her with other in-laws and as such, she was driven out
from the matrimonial home. While being so, the first accused got
marriage with the second accused on 21.01.2005. In fact, all the
family members of the first accused along with family members of
A.2 participated in the marriage. The parents of the first accused
had knowledge about the subsistence of the first marriage and got
married to the second accused. Therefore, the second accused had
full knowledge about the first marriage and its existence and got
married to the first accused. Hence, the Courts below rightly
convicted the accused Nos.1 and 2 and it is does not warrant any
interference by this Court and prayed for dismissal of both the
revisions.
10.Heard the learned counsel appearing on either side
and perused the materials available on record.
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Crl.R.C(MD)Nos.798 & 799 of 2016
11.The respondent lodged the complaint for the offence
punishable under Section 494 r/w 109 of I.P.C as against 12
accused persons on the allegation that the first accused got married
to the second accused while the first marriage between the first
accused and respondent is very much in existence. The second
accused had knowledge about the first marriage and its existence
and got married the first accused in the presence of other accused
persons, namely A.3 to A.12. Therefore, the trial Court had taken
cognizance for the offence under Section 494 r/w 109 of I.P.C
against all the accused persons.
12.The respondent was examined as P.W.1. She deposed
that she got married to the first accused on 09.09.2001 and gave
birth to a female child. Thereafter, there was a demand of dowry
from the accused and his family members. Therefore, she was
driven out from the matrimonial home. Thereafter, the first accused
filed a petition for restitution of conjugal rights and on an
undertaking given by him, the respondent joined with the first
accused. However, the same circumstances prevail over and as
such, the respondent was driven out from the matrimonial home.
Subsequently, the first accused had withdrawn the restitution of
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Crl.R.C(MD)Nos.798 & 799 of 2016
conjugal rights petition in H.M.O.P.No.49 of 2003 on the file of the
Principal Sub Court, Nagercoil. When the first marriage was very
much subsistence, he got married to the second accused on
21.01.2005. However, he did not even whisper a word about the
knowledge of the second accused about the subsistence of the first
marriage between the first accused and the respondent. In support
of her case, the other relatives were examined as P.W.2 to P.W.6.
They also corroborated the evidence of P.W.1 and did not even
whisper about the knowledge of the second accused in respect of
the first marriage between the first accused and the respondent.
Even then, both the Courts below convicted the second accused for
the offence punishable under Section 494 r/w 109 of I.P.C. When a
person is to be punished for abetment of an offence, separate
charge stating that she is prosecuted for abetting such an offence
and that the act abetted has been committed should have been
framed. The charge against the second accused ought to have been
framed as one for an offence punishable under Section 494 r/w 109
of I.P.C.
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Crl.R.C(MD)Nos.798 & 799 of 2016
13.In the case on hand, the trial Court framed charge as
against the second accused under Section 494 r/w 109 of I.P.C.
Unless she is proved to have agreed to the marriage with the
knowledge of the subsistence of the earlier marriage between the
first accused and the respondent, she cannot be convicted for the
offence under Section punishable 494 r/w 109 of I.P.C. There is
absolutely no evidence to that effect imputing direct knowledge to
the second accused regarding the subsistence of the first marriage
between the first accused and the respondent herein. Therefore, the
conviction under Section 494 r/w 109 of I.P.C as against the second
accused cannot be sustained and it is liable to be set aside.
14.In so far as the first accused is concerned, all the
witnesses categorically deposed that the first accused got married
the second accused on 21.01.2005. The ground raised by the first
accused was that the second marriage was not solemnized in
accordance with Hindu rites and essential ceremonies. It is seen
from the evidence of P.W.2, who is eyewitness to the second
marriage, revealed as follows:-
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Crl.R.C(MD)Nos.798 & 799 of 2016
“,e;jKiwg;go Rg;gpukzpad; gj;kehgdpd;
bghpag;gh jhypia vLj;J gjk;gehgdpd; ifapy;
bfhLj;jhh;. gj;kehgdpd; ifapy; bfhLj;j cld;
gj;kehgd; tp$papd; fGj;jpy; M$h; vjphpapd; fGj;jpy;
jhypiaf; fl;odhh;. gpd;dh; tpsf;if Rw;wp Kd;W Kiw
bghz;Zk;> khg;gps;isa[k; te;jhh;fs;. gpwF rhg;ghl;L
mYty;fs; vy;yhk; bra;J bfhz;L ,Ue;jhh;fs;. ehd;
btspapy; te;J tpl;nld;. gpd;dh; jhd; tp$paplk; vd;
khkd; bghz;Zf;F> Vw;fdnt gj;kehgDf;F jpUkzk;
Mfpa[s;sJ. jw;nghJ vd; khkd; bghz;Zf;F Vw;fdnt
gj;kehgDf;F jpUkzk; Mfpa[s;sJ.
jw;nghJ ,uz;lhtJ jpUkdk; bra;Js;shh;. Tl ,Ue;j
rpyh; jpUee;jpf;fiu Ciur;nrh;e;jth;fs; epd;W
bfhz;oUe;jhh;fs;.”
15.P.W.3 and P.W.4 are also eye witnesses to the second
marriage between the first and second accused and they
corroborated the evidence of P.W.2. Therefore, the respondent
proved her case beyond any doubt in order to convict the first
accused for the offence punishable under Section 494 of I.P.C.
Hence, this Court finds no infirmity or illegality in the conviction and
sentence imposed by the Courts below.
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Crl.R.C(MD)Nos.798 & 799 of 2016
16.Accordingly, Crl.R.C(MD)No.798 of 2016 is dismissed
and the conviction and sentence imposed by the Courts below are
confirmed. The trial Court is directed to take appropriate steps to
secure the petitioner/Accused No.1 in order to serve the remaining
period of sentence.
17.Crl.R.C(MD)No.799 of 2016 is allowed and the
Judgment made in Crl.A.No.33 of 2012 on the file of the learned
Mahila Court (Fast Track Court), Nagercoil, Kanyakumari District,
confirming the Judgment dated 14.03.2012 made in C.C.No.92 of
2005 on the file of the learned Judicial Magistrate No.2, Nagercoil,
Kanyakumari District, are set aside. The petitioner/accused No.2 is
acquitted. Bail bond if any executed by the petitioner/accused No.2
shall stand cancelled and a fine amount if paid is ordered to be
refunded to the petitioner/accused No.2 forthwith.
30.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)Nos.798 & 799 of 2016
To
1.The Mahila Court (Fast Track Court),
Nagercoil,
Kanyakumari District.
2.The Judicial Magistrate No.2,
Nagercoil,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)Nos.798 & 799 of 2016
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)Nos.798 & 799 of 2016
30.03.2023
https://www.mhc.tn.gov.in/judis
