Veeralakshmi vs Kannapiran and State

S. Palanivelu, J.—This criminal revision has been filed challenging the judgment made in S.C. No. 142/07 dated 24.08.2009, on the file of the Assistant Sessions Judge, Kovilpatty.

The prosecution case is summarised as follows:

2(i). P.W.1 is a retired Teacher. The victim girl P.W.2 and P.Ws.3 and 4 are her daughters and son. P.W.5 is the neighbour of P.W.1. P.W.1 lodged a complaint Ex.P1 with the Respondent police stating that P.W.2 is a handicapped girl, who is not employed, that the accused is the neighbour, that P.W.2 informed her that 15 days back the accused misbehaved with her, that P.W.1 hauled up the accused and his father Ganapathy Naicker, that Ganapathy Naicker requested P.W.1 not to divulge the matter to anybody else, that the accused had been repeatedly misbehaving with P.W.2, that on 10.09.2006, in the morning, P.W.2 told P.W.1 that she should not live in the world for the misbehaviour of the accused towards her and she also wept, that at about 9.00 p.m. on that day, P.W.2 consumed Nurelle D 505 insecticide, that on hearing the distressing voice, P.W.5 and other neighbours rushed to the place and they administered soap solution and tamarind solution into the mouth of P.W.2 to make her to vomit the contents in her stomach and that P.W.2 was removed to Tuticorin Government Medical College Hospital. P.W.9, Inspector of Police, on receipt of the information from the hospital proceeded to the hospital and recorded a complaint from P.W.1 at 20.00 hours, came to Maniachy police station and registered a case in Crime No. 21 of 2006 and lodged FIR Ex.P3 and at about 20.15 hours he proceeded to the scene of crime and prepared observation mahazar Ex.P4 and rough sketch Ex.P5 in the presence of the witnesses. He also examined the witnesses and recorded their statements. On 15.09.2006, the Sub Inspector of Police P.W.11 arrested the accused at 08.00 a.m. in front of the Ottanatham E.B. Office and took him to police station and thereafter, he sent him to judicial custody.

2(ii). P.W.12, the Doctor attached to the Government Medical College Hospital, Tuticorin, examined P.W.2 and issued Ex.P6 Accident Register. He has stated that the patient is alleged to have consumed poison (Organo Phosphorus insecticide) at about 09.00 p.m. on 11.09.2006. On completion of the investigation, P.W.9 further examined the Doctor and other police personnel and laid charge sheet against the accused u/s 354 Indian Penal Code, 1860 and Section 4A of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998.

2(iii). When the accused was questioned u/s 313 Code of Criminal Procedure as regards the incriminating materials available against him in the prosecution evidence, he denied the complicity in the offence. He did not examine any witness nor had he marked any document.

2(iv). The learned Additional Sessions Judge, Kovilpatty, on appreciation of the evidence, acquitted him of all the charges. Hence, the defacto complainant is before this Court with this criminal revision case. The State has not filed any appeal against the acquittal.

The following is the point for consideration:

Whether the prosecution has established the charges framed against the accused beyond all reasonable doubts?

Point: The first and foremost contention of the learned Counsel for the first Respondent is that at any cost Section 4A of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998, (hereinafter referred to as ''the Act'') is not applicable to the facts of the present case and that only if the victim breathed her last, Section 4A of the Act would come to play and without properly scrutinizing the materials and evidence the Investigating Officer has filed charge sheet against the accused u/s 4A of the Act. The Court below has also recorded a finding that not only the Inspector of Police who laid charge sheet but also his predecessor have pressed into service Section 4A against the accused without any proper appreciation of the materials on record. Section 4A of the Act goes thus:

4A. Harassment death.-(1) Where the death of a woman is caused by bodily injury or occurs otherwise than under normal circumstances and if it is shown that soon before her death, she was subjected to harassment or that in respect of her an offence u/s 294, 354 or 509 of the Indian Penal Code (Central Act XLV of 1860) was committed, such death shall be called harassment death.

(2) Notwithstanding anything contained in Section 4, whoever commits harassment death and if the act by which the death is caused,

(i) is done with the intention of causing death or of causing such bodily injury as is likely to cause death, shall be punished with imprisonment of either description for a term which may extent to imprisonment for life and with fine which shall not be less than fifty thousand rupees;

(ii) is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to ten years and with fine which shall not be less than fifty thousand rupees;

(iii) is rash or negligent, shall be punished with imprisonment of either description for a term which may extend to ten years and with fine which shall not be less than twenty - five thousand rupees.

The Section opens with the terms "where the death of a woman is caused by bodily injury". Hence, only if the victim dies on account of harassment perpetrated to her, Section 4A of the Act could be availed. In the case on hand, P.W.2 is very much alive. Hence, it is not proper for the Investigating Officer to charge the accused under this Section. The learned Judge who has framed charges also has miserably failed to go through the materials in the prosecution case in a proper manner and wrongly framed charge under this Section. On this account, the charge u/s 4A of the Act has No. legs to stand.

Mr. S. Durairaj, the learned Counsel for the revision Petitioner would contend that there is No. motive for P.Ws.1 and 2 to make a false allegation against the accused, that the evidence adduced by P.Ws.1 to 4, though related among themselves, are satisfactory and convincing, that the material evidence would indicate that in view of the misbehaviour perpetrated upon her, she had taken the extreme decision of committing suicide by consuming poison, that this very incident is sufficient to show that the accused is guilty of committing the offence of outraging the modesty of the victim girl and that the evidence of P.W.2 alone is enough to convict the accused.

Repelling the contentions, Mr. S. Ramasamy, the learned Counsel for the first Respondent would contend that the first information with regard to the alleged occurrence as contained in Ex.P1 does not disclose the specific words as required by law, that P.Ws.1 and 2 would say that the accused pressed the breasts of P.W.2 and kissed her but P.W.1 has woefully failed to mention those incidents in her complaint and by No. stretch of imagination, a charge u/s 354 Indian Penal Code, 1860 could be made out and that medical evidence in this case would not come to the aid of the prosecution.

The learned Additional Public Prosecutor appearing for the second Respondent would argue that even though the State has not preferred any appeal, the culpability of the accused is disclosed from the evidence on record and that the circumstances surrounding the admission of P.W.2 into the hospital would clearly show that the accused had outraged the modesty of P.W.2.

Even though P.Ws.1 and 2 had stated in their oral evidence that the accused pressed the breasts of P.W.2 and kissed her, they were not specifically mentioned in the complaint. The complaint would show that the accused disgraced (khdgA;fk;) P.W.2. This would not constitute an offence u/s 354 Indian Penal Code, 1860.

The occurrence is said to have taken place about 15 days anterior to 10.09.2006 and No. particulars with regard to the date, time and place and when the occurrence took place have been mentioned in the complainant, nor had they been stated by P.Ws.1 and 2. Even though P.W.1 has stated in a vague manner that the accused used to misbehave with her daughter then and there, No. particulars were furnished with reference to the alleged misbehaviour.

As far as the attempt to commit suicide on the part of P.W.2 is concerned, it is stated that the main reason is the misbehaviour of the accused towards P.W.2. In this context, P.W.12, the Doctor says that at the time of examination, P.W.2 was unconscious and her pupils were pin-pointing. In the Accident Register, the time and date of examination of P.W.2 are mentioned as 11.09.2006 at 1.00 a.m. But, the Doctor has stated that P.W.2 is alleged to have consumed poison at home at 09.00 p.m. on 11.09.2006. It may be due to inadvertence. But it is the duty of the Doctor and the Investigating Officer to clarify the same before the Court. But No. clarification was made before the Court as to the above said discrepancy.

P.Ws.3 and 4 are the brother and sister of P.W.2. Their evidence are hearsay. P.W.5, the neighbour, turned hostile to the prosecution and she was examined in cross by prosecution. P.W.8, is the attestor to the observation mahazar, who also turned hostile.

When the entire evidence on record are put to careful scrutiny of this Court, only evidence of P.Ws.1 and 2 are remaining to show the guilt of the accused. But, as discussed above, their evidence are not sufficient to hold that the accused has committed the crime u/s 354 Indian Penal Code, 1860.

The learned Counsel for the first Respondent would submit that in the revision, this Court has got limited powers to interfere with the findings of the Court below and in the absence of any manifest error or perverse finding, there is No. scope for reversing the judgment of the Court below.

In support of his contention, he placed reliance upon a decision reported in Thankappan Nadar and Others Vs. Gopala Krishnan and Another, , wherein the Honourable Supreme Court while discussing about the powers of the High Court in the revision filed by the defacto complainant has formulated the following principles which have to be borne in mind before deciding the case. The operative portion reads as follows:

In a revision application filed by the defacto complainant against the acquittal order, the Court''s jurisdiction u/s 397 read with Section 401 Code of Criminal Procedure is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court. In Akalu Ahir and Others Vs. Ramdeo Ram, this Court has (in SCC pp.587-88, para 8) observed thus:

This Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:

(i) Where the trial court has No. jurisdiction to try the case, but has still acquitted the accused;

(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;

(iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence which is invalid under the law."

A Division Bench of this Court, in a decision reported in (2010) 1 MLJ (Cri.) 513 (K. Vellingiri and Ors. v. Abdul Nazer Mahdani and others), has reiterated the above said principles. Further observation is that it is a settled position of law that the differing perception over evaluation of evidence is not a ground for interference in case of revision against acquittal and that it is also a settled position of law that the revisional Court does not function as a Court of appeal and cannot reappraise the evidence. It is further held that in the case of invocation of revisional jurisdiction by a private party, an order of acquittal ought not to be interfered with lightly and the revisional jurisdiction could be exercised only in exceptional cases where the interest of public justice require interference for the correction of manifest illegality or the prevention of gross miscarriage of justice.

In (2004) 13 SCC 374 (Hydru v. State of Kerala), the Hon''ble Supreme Court has held that it is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court.

The learned Counsel for the first Respondent also cited decisions of this Court in (2007) 2 MLJ (Cri) 691 (Prema v. Ramesh and Others) and (2009) 4 MLJ (Cri) 477 (R. Madesh v. State rep. by Inspector of Police, Kolatur Police Station, Kolathur, Salem District and others) wherein also the above said principles have been referred to and followed.

A careful consideration of the evidence and other materials on record, would show that there is No. manifest error nor perverse finding in the judgment of the Court below and there is No. scope for interference by this Court with the judgment challenged before this Court. Hence, the judgment of the Court below is confirmed. The revision suffers dismissal.

In the result, the criminal revision case is dismissed.