P GANDHIMATHI ALIAS AKILA Vs. M SUBRAMANIAM

JUDGEMENT

(1.) PETITION filed under Section 397 r/w 401 of Cr.P.C. against the order dated 7.12.2005, passed by the Judicial Magiastrate, No.1, Erode, in C.C.No,7 of 2004. Animadverting upon the order dated 7.12.2005, passed by the Judicial Magiastrate, No.1, Erode, in C.C.No,7 of 2004, this criminal revision case is focussed.

(2.) 'A' resume of facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: (a) The police, in terms of Section 173 Cr.P.C. filed the police report as against six accused, namely, 1. S.Krishnamurthy, 2.M.Subramaniam, 3.Nagammal, 4.Murugavel, 5.Nisha, 6.Y.Kavitha. The accused pleaded not guilty. Whereupon, the trial was conducted before the Magistrate. (b) During enquiry, on the prosecution side, the complainant/the revision petitioner was examined as P.W.1 along with 18 others and Exs.P1 to P5 were marked. No oral or documentary evidence was adduced on the side of accused. (c) Ultimately, the trial Court convicted A1 for the offences under Section 498-A IPC and Section 4(1) of the Dowry Prohibition Act and acquitted A1 of the offence under Section 323 IPC. The Magistrate also acquitted A2 to A6 of all the offences with which they were charged. It appears, A1 preferred criminal appeal questioning and challenging the conviction and sentence imposed as against him, which is pending. Whereas, the de-facto complainant P.W.1-Gandhimathi preferred this revision challenging and impugning the acquittal of A2 to A6 of all the offences with which they were charged on various grounds, the pith and marrow, the gist and kernal of them would run thus: The judgement of the lower Court is not in accordance with law, as the Magistrate has chosen to simply remark as though no satisfactory evidence was adduced by the prosecution as against A2 to A6-the respondents herein and acquitted them. Despite clinching evidence available as against A2 to A6 also, no conviction was recorded and no sentence was imposed by the Magistrate. The lower Court also has not considered the purport of Section 8(b) of the Dowry Prohibition Act, which cast the burden on the accused and not on the prosecution. Even though there is nothing to indicate and exemplify that the case of the prosecution was false as against A2 to A6, nonetheless, the Magistrate developed some doubt about the prosecution case and acquitted A2 to A6. Simply based on the proposition that benefit of doubt has to be given to the accused, leniency cannot be shown towards the accused, and thereby deprive the revision petitioner of her genuine right to secure conviction as against A2 to A6. Even in response to the questions put to A2 to A6 during Sec.313 examination, no effective answers were given by them to evince their innocence. Minor lapses on the part of the investigating agency or prosecution cannot be taken as material by the learned Magistrate. Accordingly, the revision petitioner prayed for setting aside the order of the lower Court in acquitting A2 to A6 and pass suitable direction in this regard.

(3.) THE learned counsel for the revision petitioner would set forth and put forth his arguments to the effect that P.W.1 being the victim of the crimes perpetrated by A1 to A6, detailed and challenged, narrated and described the occurrence nonetheless the Magistrate simply observed as though there was no evidence as against A2 to A6 P.Ws.2 and 3 even though happened to be the parents, they were not eyewitnesses to all the atrocities and cruelties perpetrated by the accused as against P.W.1 and in such a case merely because those witnesses P.W.2 and P.W.3 did not speak about the overt act of A2 to A6 specifically, the lower Court was not justified in drawing adverse inference as against the prosecution in commensurate with Section 353 and 354 Cr.P.C., the Magistrate had not rendered the judgement in acquitting A2 to A6 and accordingly he prayed for reversal of such acquittal.