Anandha Thandavam and Another vs Udaya Sundaram

Arunachalam, J.—Petitioners are A-2 and A-3 in C.C. No. 24 of 1987 on the file of the Judicial First Class Magistrate, Chidambaram. The

other accused who is arrayed as A-1 is Thiruchelvam who is directly charged for having committed adultery, with P.W.3, the wife of the

Respondent Udaya Sundaram punishable u/s 497 I.P.C. The Petitioners are brothers and P.W.3 Saraswathi is their sister. Saraswathi married the

Respondent on 12-9-1979 at Chidambaram. The Respondent works in the Co-operative Milk Society at Chidambaram as a Typist and resides at

No. 68, Mannargudi Street, Chidambaram. His wife Saraswathi examined as P.W.3 is a Junior Assistant in Villiyanur Commune Panchayat and

she normally resides at Villiyanur itself, away from her husband. It appears from the evidence on record that there have been ill-feelings between

the Petitioners and the Respondent as well as between the Petitioners and PW.3, While so, it is the allegation of the Respondent in his complaint

that Thiruchelvam A-l committed the offence of adultery in his house at Chidambaram with his wife P.W.3 at or about 2 P.M. on 28-12-1986 in

his absence. The occurrence was seen by Sridharan examined as P.W 2 who happens to be the house owner of premises No. 68, Mannargudi

Street, Chidambaram. When P.W.2 knocked the door after the incident, it is the prosecution case that the first accused, Thiruchelvam, ran away

while P.W.3 stated that her act could be informed to the Respondent and also her aversion to the Respondent could be made known to him. Later

in the evening when the Respondent returned to his house on getting the information from P.W.2 Sridharan about the alleged offence, he along with

his elder brother Thirunavukkarasu examined as P.W 4, proceeded to Villiyanur to the residence of the Petitioners and questioned them about the

conduct of their sister examined as P.W.3. It is the prosecution case that the Petitioners stated that the Respondent''s wife (P.W.3) will thereafter

live with the first accused Thiruchelvam. On these allegations, the Respondent filed a complaint before the Chidambaram Town Police Station on

29-12-1986 but was directed to prefer a private complaint. Accordingly on 7-1-1987 the Respondent filed the private complaint before the

Judicial First Class Magistrate, Chidambaram, who, after recording the sworn statement of the Respondent, examined Sridharan, the house owner,

and took the case on file for offences u/s 497 and Section 497 R.W. 109 I.P.C. Subsequently, after issue of process to the Petitioners and

Thiruchelvam, the trial was proceeded with. The Respondent was examined as P.W.1 and Sridharan was examined as P.W.2 Saraswathi, was

examined as P W.3 and the elder brother of the Respondent Thirunavukkarasu was examined as P.W.4. P.W.3, the wife of the Respondent, has

testified that she and her husband the Respondent were initially happy with their marital life, and later, the Respondent took a second wife and

started neglecting her and never visited her for over two or three years. It is also her case that the Respondent had developed an aversion towards

her and was proposing to take a second wife. She denied the charge of adultery with A1. She had also deposed that she was inimically disposed

towards the Petitioners in view of some dispute regarding presentation of jewels by the Petitioners at or about the time of her marriage.

The charge that has been framed against the Petitioners is for an offence u/s 497, I.P.C., read with Section 109, I.P.C. The charge reads that on

28-12-1986 at or about 2 P.M. when A-1 Thiruchelvam had sexual intercourse with P.W.3, the wife of the Respondent, the Petitioners abetted

the commission of the said offence.

The facts stated above very clearly indicate that the Petitioners had no manner of connection whatsoever with the crime in question. The

allegations made by the prosecution in the complaint as well as the evidence in court clearly postulates that the Petitioners were neither at the scene

nor had done any act to facilitate the crime being committed by A-1 Thiruchelvam. To constitute abetment person must instigate any other person

to do a particular thing or he must engage himself with one or more person in a conspiracy of doing that thing or he must intentionally aid by any act

or illegally omit the doing of that thing. The definition of abetment u/s 107 of the Indian Penal Code portrays that to constitute abetment, the abettor

must be shown to have intentionally aided the commission of the crime. On the facts of this case, the first and second clause of Section 107, I.P.C.

have to be necessarily excluded. Concerning the third clause of Section 107, I.P.C, as stated earlier, there is no material to indicate that the

Petitioners intentionally aided the commission of the offence. All that the evidence let by the prosecution will indicate will be that after the event the

Respondent went and questioned the Petitioners who stated that their sister P.W.3 would only live thereafter with A-1 Thiruchelvam. The

evidence, even if true, cannot constitute abetment to connect the Petitioners with the crime in question. Intentional aiding and active complicity is

the gist of the offence of abetment. It is not even enough that an act on the part of the alleged abettor happens to facilitate the commission of the

crime. Even such material is not available on the facts of this case.

On the materials placed before the Court, I am of the firm view that a charge u/s 497 read with Section 109 I.P.C. cannot be framed against the

Petitioners. The charge has to be necessarily quashed and it is accordingly quashed. The proceedings against the Petitioners in C.C. 24 of 1987 on

the file of the Judicial First Class Magistrate, Chidambaram will stand quashed.