M THILAGAVATHY Vs. SUBRAMANIAN

JUDGEMENT

(1.) CRL.R.C.No.630 of 2005 and CRL.R.C.No.939 of 2005 arise out of the judgment in C.A.No.77 of 2004 on the file of the Additional District and Sessions Judge, (FTC-IV), Chengalput, Poonamallee, which had arisen out of the judgment of the Judicial Magistrate No.II, Poonamallee, in C.C.No.151 of 1998. A1-Dr.Subramanian in C.C.No.151 of 1998 was charged under Section 494 IPC for having married A2 for the second time while his wife the complainant-Dr.Mrs.Thilagavathy is alive. 2.The case was taken on file by the learned Judicial Magistrate and on appearance of the accused on summons, copies under Section 207 of Cr.P.C., were furnished to the accused and when charges under Section 494 IPC against A1 and under Section 494 r/w 109 IPC against A2 were framed and questioned, the accused pleaded not guilty. Before the trial Court P.W.1 to P.W.6 were examined and Ex.P.1 to Ex.P.20 were marked. 3.The complainant-Dr.Mrs.Thilagavathy in her evidence as P.W.1 would depose that the marriage between her and A1 was solemnized on 15.9.1983 and that she gave birth to a male child on 14.1.1987 and she got government employment and was working as a government doctor at various places during 1986 and lastly at Manaparai in the year 1990. Her husband A1 is also in government service and he after worked in various places in the State lastly came to Manaparai in the year 1990 and that in the year 1990 both she and A1 were working in the government hospital at Manaparai and that at that time A1 was working as a Junior doctor under her and that she was in the family way for the second time, but A1 was leading a wayward life and inspite of her advice A1 refused to get himself reformed and that on 1.6.1991 she was subjected to cruelty which ends in an abortion of her seven months old featus and in the year 1991 she was transferred to ESI Hospital, Chennai, and during February-1992 A1 came to Chennai took apology from her and thereafter they lived together and A1 joined in M.S., Course at Madras Medical College. She would say in the year 1996 A1 demanded Rs.2,00,000/- for starting a separate clinic for him and instructed her to bring Rs.2,00,000/- from her parents and that there was frequent quarrel between them during May-1996. Since she could not give Rs.2,00,000/- to A1, he issued a divorce notice, which was suitably replied by her. She has also produced the copy of the judgment in the divorce petition filed by A1 as Ex.P.1. According to her, on 13.12.1997 she received a letter from her uncle Rajan stating that A1 has married another women for the second time at Trichy. Ex.P.2 is the said letter. Ex.P.3 is the cover in which Ex.P.2 was sent. After receiving Ex.P.2-letter she became restless and was shocked and began to enquire ascertain whether the allegation in Ex.P.2 is true. She went to Thusoor, where the alleged second marriage of A1 with A2 is said to have conducted. She enquired with P.W.2 and other witnesses in the village and came to know that the second marriage between A1 and A2 was solemnized on 5.9.1997 at Door No.7, Prasath Nagar, Thandalam, in the house of P.W.2. Ex.P.4 is the letter given to the villagers by P.W.1 requesting them to certify the second marriage. Ex.P.5 is the reply for Ex.P.4. Through P.W.4 she has ascertained the factum of the second marriage between A1 and A2. She has preferred the complaint on 14.5.1998. She would further admit that A2 had given birth to a male child on 2.8.1998 through A1. Ex.P.6 is the birth certificate for the child born to A2 on 2.8.1998 issued by Namakkal Municipality. 4.P.W.2 is an eye witness to the second marriage, who would speak about the engagement of the marriage between A1 and A2 on 5.1.1997 and at that time A2-Govindammal was working as a servant maid in A1's house at Chennai. According to P.W.2, A1 at the time of engagement itself has informed the relatives including the parents of A2 that he had already obtained an order of divorce against P.W.1, the first wife. According to P.W.2, the engagement between A1 and A2 took place in his house on 5.1.1997 at about 6.00 pm in the presence of the sisters and brother of A1 and that A1 had arranged feast and in the van he along with the relatives came to Chennai and the marriage between A1 and A2 was solemnized on 5.9.1997 and that both A1 and A2 exchanged garlands and A1 had tied up the Thali to A2, and that A1 has also arranged feast on the same day and P.W.4-Nithyanantham also participated in the marriage as well as in the feast. According to P.W.2, he was also present in the village on 14.1.1998 when the complainant-P.W.1 was making enquiry about her husband's (A1) second marriage and that for Ex.P.4-application Ex.P.5-reply was given by the village punchayators, in which he (P.W.2) has also signed along with the other witnesses. According to him, in the mean time A2 became pregnant and she was also taken to Chennai by A1. 5.P.W.3-Rajaiya is also an eye witness to the second marriage of A1 with A2. He would admit that he only informed P.W.1 about the solemnization of the second marriage A1 with A2 and that on 14.1.1998 P.W.1 came to the village to which A2 belongs and that she got Ex.P.5-letter from the village punchayators certifying the marriage between A1 and A2. 6.P.W.4-Nithyanatham is indulged in real estate business. He would depose that he knows A1 and that three days before 7.1.1997 A1 had informed him that his marriage is going to be solemnized on 5.9.1997 between 6.00 am and 7.30 am and that he too attended the marriage of A1 with A2 on 5.9.1997 and there were about 30 members attended in the marriage and that in the marriage both A1 and A2 have exchanged the garlands and A1 tied up Thali to A2 and that some time later P.W.1 met him and enquired about the marriage between A1 and A2 and also informed him that she (P.W.1) is the first wife of A1. 7.P.W.6 is the doctor, who had attended the delivery for A2. Ex.P.18 is the birth register maintained in the hospital. Ex.P.19 is the birth certificate for the child born to A2. According to him, A2 was brought to his hospital on 2.8.1998 and that she requested him not to register the birth of the child, but he politely refused the same. 8.On the above evidence incriminating circumstances were put to the accused under Section 313 of Cr.P.C., to which both A1 & A2 denied their complicity with the crime. 9.After going through the evidence both oral and documentary the learned Judicial Magistrate has come to the conclusion that the offence under Section 494 IPC has been proved beyond any reasonable doubt against A1 and accordingly the learned Judicial Magistrate has convicted A1 under Section 494 IPC and sentenced him to undergo 3 months SI and slapped a fine of Rs.5,000/- with default sentence, but acquitted A2 on the ground that charge under Section 494 r/w 109 IPC has not been proved against A2. 10.Aggrieved by the findings of the learned trial Judge A1 has preferred C.A.No.77 of 2004 before the Additional District and Sessions Judge (FTC-IV), Chengalput, Poonamallee, who after due deliberations to the submission made by the learned counsel on both side and after scanning the evidence produced before the trial Court, has upheld the conviction of the trial Court, but modified the sentence to an imprisonment till raising of the Court instead of 3 months SI and also enhanced the fine amount from Rs.5,000/- to Rs.10,000/- with default sentence. 11.Aggrieved by the findings of the first appellate Court the complainant, first wife of A1, has preferred CRL.R.C.No.630 of 2005 challenging the findings of the first appellate Court in C.A.No.77 of 2004 against the modification of sentence against A1 and also preferred CRL.A.No.997 of 2004 against the findings of the learned trial judge in acquitting A2 from the charges under Section 494 r/w 109 IPC. A1 has preferred CRL.R.C.No.939 of 2005 against his conviction under Section 494 IPC by the first appellate Court in C.A.No.77 of 2004. 12.Now the points for determination in these revision petitions as well as appeal are as follows:- i) Whether the conviction and sentence against A1 under Section 494 IPC by the learned first appellate Court is liable to be enhanced for the reasons stated in the memorandum of revision in CRL.R.C.No.630 of 2005" ii) Whether the findings of the learned first appellate Court in C.A.No.77 of 2004 against A1 under Section 494 IPC is liable to be set aside for the reasons stated in CRL.R.C.No.939 of 2005" iii) Whether A2 is liable to be convicted for an offence under Section 494 r/w 109 IPC for the reasons stated in the memorandum of appeal in C.A.No.997 of 2004" 13.The points:- 13(a) An offence under Section 494 IPC has been proved against A1 by the complainant by examining herself as P.W.1, which evidence was corroborated by the evidence of P.W.2 to P.W.4. Both the Courts below have concurrently held on the basis of the available evidence both oral and documentary that the charges levelled against A1 under Section 494 IPC has been proved beyond any reasonable doubt. Even during his answer to the incriminating circumstances put to him under Section 313 of Cr.P.C., A1 has not raised any defence. He has only produced the copy of the judgment in the divorce petition filed by him as Ex.D.1. 13(b) The learned counsel appearing for the revision petitioner in CRL.R.C.No.630 of 2005 Mr.R.Sankarasubbu would vehemently attack the judgment of the trial Court on the ground that without any rhyme or reason the learned first appellate Judge has modified the sentence of the learned trial Judge, which is to be deprecated in lieu of the findings of the Honourable Apex Court in 2003 SCC (Cri) 1935 (State of MP Vs. Ghanshyam Singh). Relying on the observation of the Honourable Apex Court at para 17 in the above said ratio, the learned counsel would contend that without considering the plight of a woman and the social order and the social impact on the offence against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency no liberal attitude by imposing meagre sentence taking a sympathetic view merely on account of lapse of time cannot be encouraged but to be deprecated. The facts of the above cited case is that the accused was convicted and sentenced by the trial Court under Section 302 IPC, but on appeal the High Court of Madhya Pradesh set aside the sentence under Section 302 but convicted the accused under Section 304(1) IPC and sentenced to undergo two years of imprisonment, which was challenged before the Honourable Apex Court by the Sate of Madhya Pradesh, wherein it has been observed by the Honourable Apex Court as follows:- "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endue under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." There cannot be two opinion to the above said principle. But punishment should always be commensurate with the gravity of the offence. In the case on hand the charge against A1 is that he had married A2 for the second time. The learned counsel Mr.R.Sankarasubbu would submit that taking into considering the fact that A1 is a doctor both the Courts below have taken leniency on the sentence. Some of the admitted facts to be taken note of while awarding punishment to A1. Both P.W.1 and A1 are government doctors and that they worked together at Manaparai Government Hospital in the year 1990 and that she meeted out cruelty at the hands of A1 on 1.6.1991 and the specific averment made by P.W.1 is that A1 had kicked her in the stomach while she was seven months advanced stage of pregnancy which resulted in abortion. But the fact remains that she has not preferred any complaint against the accused in the year 1991. Subsequently they came to Chennai in the year 1992 and she was working in ESI Government Hospital at Chennai and A1 was pursuing his higher studies in the Madras Medical College and that they lived together happily till 1996 and in order to set up a private clinic with modern equipments A1, according to P.W.1, had demanded Rs.2,00,000/- from her parents. But even at that time in the year 1996 she has not preferred any complaint regarding harassment of additional dowry against A1. Even according to her evidence, she came to know about the second marriage of A1 with A2 even as early as on 13.12.1997 itself through Ex.P.2.-letter. She immediately began to enquire about the veracity of the averments made in Ex.P.2-letter and she came to know about the factum of marriage between A1 and A2 on 14.1.1998 through P.W.3 & P.W.4. But she has preferred the complaint only on 14.5.1998. There is no proper explanation forthcoming from the complainant P.W.1 for this inordinate delay in preferring the complaint against A1. Even though this in ordinate delay was not considered by both the Courts below even in this revision the delay was not pressed by the revision petitioners. Another important point to be noted in the evidence of P.W.2 is that A2 was all along worked as a servant maid in the house of A1 at Madras even before the occurrence. 13(c) The learned counsel Mr.R.Sakarasubbu focused the attention of this Court to the ratio in 2005 SCC (Cri) 612 (A.S.Krishnan and others Vs. State of Kerala), and contended that on a mere ground that the accused is a doctor no leniency or undue sympathy can be shown to the accused. The above cited case A2 is the son of a Doctor, who has faced a charge under 471 and 465 IPC in tampering with the marks in the mark sheet in the medical course. The learned counsel relied on an observation of the Honourable Apex Court in the above said ratio decidendi, which runs as follows:- "So far as the question of sentence is concerned, we find that the High Court has already taken a liberal view so far as A-2 is concerned. In a case when students use forged marksheets to obtain admission thereby depriving eligible candidates to get seats and that too to a medical course and a doctor is involved in the whole operation, uncalled-for leniency or undue sympathy will be misplaced and actually result in miscarriage of justice. Such types of crimes deserve as a matter of fact, deterrent punishment in the larger interests of society. If at all, the case calls for severe punishment. We find no substance in the plea relating to sentence or extending the benefits of the Probation Act." But in the case on hand both the complainant as well as A1 are doctors and that A1 is facing a charge under Section 494 for having married A2 for the second time. It is further admitted that A1 after the occurrence has lost his government job. Both the Courts below have taken into consideration the fact that A1 is no more in government service, have taken a lenient view in awarding sentence while holding that the charge under Section 494 IPC has been proved against the A1. So the contention of the learned counsel Mr.R.Sankarasubbu that both the Courts below took a lenient view only on the ground that A1 is a doctor cannot be sustainable. Under such circumstances, I am of the view that no useful purpose will be served if A1 is sent to prison. Yet another point to be noted in this case is that A2 was all along worked as a servant maid in the house of A1. Even though the petition filed by A1 for divorce against the complainant has been dismissed, the fact remains that the complainant and A1 are not in cordial terms and they are at logger heads. The another point to be taken into consideration is that A2 has also given birth to a child due to the second marriage as per the evidence of P.W.6. Further the sentence awarded by the first appellate Court, i.e., 'imprisonment till the raising of the Court' has also been served out by A1. Both the Courts below concurrently held that the charge under Section 494 r/w 109 IPC has not been proved against A2. It is in evidence that even to the relation of A2, A1 has informed that he has already obtained a divorce against the complainant, first wife and thus paved the way for the second marriage. So it cannot be said that A2 is an abettor for the offence under Section 494 r/w 109 IPC. Under such circumstances, I do not find any reason to interfere with the findings of the learned first appellate Court in C.A.No.77 of 2004 on the file of the Additional District and Sessions Judge, (FTC-IV), Chengalput at Poonamallee. Points are answered accordingly. 14. In the result, the CRL.R.C.No.630 & 939 of 2005 and CRL.A.No.997 of 2004 are dismissed, and consequently, the judgment of the first appellate Court in C.A.No.77 of 2004 on the file of the Additional District and Sessions Judge, (FTC-IV), Chengalput, Poonamallee, is confirmed.