Daily Archives: July 4, 2013

11 yrs to freedom: Road accident.Huge medi bill.Jewls pledged.Quarrel re. Jewel.Wife commits suicide.NO dowry demand. Still hubby charged with Murder 304-B and Cruelty 498A. Abetment of suicide 306 added by lower court !!. So, husband ordered imprisonment etc etc… HC appreciates the facts and finally acquits the man ….**just that it takes 11 years to freedom**

to Quote the honourable HC
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"……….trial court, on the basis of the evidence of P.Ws.1 and 5, convicted the accused for the offences of abetment and cruelty under sections 306 -B and 498-A respectively. From the reading of the entire evidence of P.Ws.1 and 5, one can come to the conclusion that no harassment as well as cruelty and no abetment has been made by the accused to the deceased. Therefore, I am of the view that the offences charged against the accused have not been proved by the prosecution beyond reasonable doubt. Therefore, the conviction made by the trial court under the said sections is not based on sound reasoning and the same is not correct……….."

My Questions
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To me, This case once again shows how the lower courts are free to decide as they please, and in the words of the HC "…conviction made by the trial court under the said sections is not based on sound reasoning and the same is not correct…."

Just because someone’s reasoning is wrong, LIVES… yes …HUMAN LIVES are wasted at the stroke of a pen. Why can’t the lower court appreciate what the HC appreciated ?? why should the human life / time / public money / private money be wasted because the lower court did not appreciate the evidence ?? or reason out things properly ??

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CASE from JUDIS DOT NET WEBSITE
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :17.2.2011

Coram

The Hon’ble Mr. Justice A.ARUMUGHASWAMY

Criminal Appeal No.132 of 2003

Sankar … Appellant

Vs.

The State of Tamil Nadu
rep. By the Deputy Superintendent of Police
Poonamallee
Chennai 56. … Respondent

Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge, (Fast Track Court No.4), Poonamallee in S.C.No.343 of 2001 dated 10.1.2003.

For Appellant :- Mr.R.John Sathyan
For Respondent :- Mr.N.Kumanan Govt. Advocate (Crl. Side)

JUDGMENT

The appellant who is the sole accused in S.C.No.343 of 2001 on the file of the learned Additional Sessions Judge, Poonamallee stands convicted for the offences under sections 498-A and 306 IPC and sentenced under Section 498-A to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of six months and sentenced under Section 306 to undergo rigorous imprisonment for five years and also to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of six months. The said sentences were ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal.

2. The case of the prosecution is that the deceased and the accused got married on 16.9.1998 and on the date of occurrence i.e. on 30.5.2000, the deceased consumed poison and she died on 2.6.2000. On 30.5.2000 at 7.30 a.m. the deceased and A1 quarrelled with each other regarding the redemption of the jewels pledged by the husband, which were presented by her parents. Immediately, after the quarrel A1 left and gone to his sister’s house. At that time, the grandson of P.W.1 came and informed that his aunt consumed poison. Immediately, the police also came and she was admitted in Ramachandra Hospital, where she died. On 30.5.2000, P.W.1 the mother of the deceased gave Ex.P1 complaint to the Mangadu Police Station. She has stated in the complaint that the deceased and the accused have got 10 months old male baby. Further, in the complaint she would state that regarding the redemption of jewels wordy quarrel arose between them and her daughter consumed poison. P.W.2 is the Doctor who gave first aid treatment to the wife of the accused on 30.5.2000. P.W.3 is the Doctor who conducted post mortem. He would state in his evidence that the deceased died due to poison. P.W.4 Vignesh is doing 2nd standard and he has not been examined. P.W.5 is the brother of the deceased. P.W.6 is the Mahazar witness. P.W.7 is the R.D.O who conducted inquest. P.W.8 is the Sub Inspector, who received the complaint. P.W.9 is the Deputy Superintendent of Police, who investigated the case. P.W.10, the successor Investigating Officer, took up further investigation and laid charge sheet for the offence under Sections 498 (A), 306, and 304 (B).

3. Before the trial court on the side of the prosecution P.Ws.1 to 10 were examined and Exs.P1 to P11 were marked. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, the accused denied his complicity. The trial court on consideration of the oral and documentary evidence convicted the appellant and sentenced him as stated above against which the present appeal has been filed.

4. The contention of the learned counsel appearing for the appellant / accused is that while the accused has been acquitted of the offence under Section 304 (B) he has been found guilty under Sections 498-A and 306 alone for which no offence has been made out. Hence, the prayed that the appeal has to be allowed.

5. The learned Government Advocate (Criminal Side) contended that even though for the offence under Section 304 -B, the accused has been acquitted, the other charges have been proved. Hence, he prayed that the conviction and and sentence imposed by the trial court has to be confirmed.

6. As per the evidence of P.W.1 the mother of the deceased, it is seen that the marriage had taken place between the deceased and accused and they were bestowed with a male baby of 10 months old. Further, from the evidence it is seen that both A1 and deceased involved in the road accident. At that time they were admitted in Ramachandra Hospital. After pledging the jewels presented by P.W.1 only they had spent for treatment. Further, it is seen that the deceased had already undergone major surgery on the head due to the accident for which considerable amount has been spent. On the fateful day, the quarrel had taken place in between the couple, only regarding the redemption of the jewels already pledged by the accused. Since the accused is a contractor of pesticides, he would keep pesticides in his house. On the fateful day, after the quarrel had taken place he went to the house of his sister and during that time only the deceased consumed pesticide. From the evidence of P.W.1 and P.W.5, the brother of the deceased, it is seen that dowry harassment has not been made by the accused at any point of time. Further, it is seen that the jewels have been pledged by the accused only in connection with the treatment of his wife viz., the deceased. Therefore, I am of the view that the trial court has rightly acquitted the accused of the charge of dowry harassment. However, the trial court, on the basis of the evidence of P.Ws.1 and 5, convicted the accused for the offences of abetment and cruelty under sections 306 -B and 498-A respectively. From the reading of the entire evidence of P.Ws.1 and 5, one can come to the conclusion that no harassment as well as cruelty and no abetment has been made by the accused to the deceased. Therefore, I am of the view that the offences charged against the accused have not been proved by the prosecution beyond reasonable doubt. Therefore, the conviction made by the trial court under the said sections is not based on sound reasoning and the same is not correct.

7 . In the result, the conviction and sentence imposed upon the appellant is set aside and the appellant is acquitted. The bail bonds shall stand cancelled. Thus, the appeal is allowed.

Krr/

To

1. The Additional District and Sessions Judge,
(Fast Track Court No.4), Poonamallee.

2. The Public Prosecutor
High Court,
Chennai

motive is only to wreck vengeance..the allegations are vexatious..fit case to be interfered with: Madras HC interferes to save the lives of elderly parents living in India while hubby and wife lived in Canada …

Thoughts
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* When a woman is dead a man has to be made responsible
* he and his relatives are to be publicly humiliated, arrested, what not
* Even when the husband is arrested and tried for murder, when anger has NOT subsided, elderly parents are dragged into the case !!
* In the instant case, elderly Father and Mother in Law of dead wife are acquitted by Madras HC with the below quote

To quote the Honb’le HC
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"…In my considered view, in the instant case, the motive is only to wreck vengeance and the allegations are vexatious and it is a fit case to be interfered with under Section 482 of Cr.P.C., otherwise the continuance of which, will amount to abuse of process of law…."

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FROM THE JUDIS DOT NET WEBSITE
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 30/09/2009

CORAM
THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI

Crl.O.P.(MD)No.3403 of 2009
and
M.P.(MD)Nos.1 and 2 of 2009

1.Dhanalakshmi
2.K.Varadharajan
3.V.Vinayagamoorthy … Petitioners
Vs.

The State Rep.by its
The Inspector of Police,
Rajapalayam North Police Station,
Rajapalayam,
Virudhunagar District. … Respondent

PRAYER

Criminal Original Petition filed under Section 482 of Cr.P.C. to quash the charge-sheet against the petitioners in C.C.No.333 of 2008 pending on the file of the learned Judicial Magistrate, Rajapalayam in Crime No.637 of 2007 on the file of the respondent.

!For Petitioners … Mr.R.Meenakshi Sundaram
^For Respondent … Mr.P.Rajendran
G.A.(Crl.side)

:ORDER

The petition is filed under Section 482 Cr.P.C. to quash the charge-sheet in C.C.No.333 of 2008 on the file of the learned Judicial Magistrate, Rajapalayam.

2.The facts of the case is as follows:

The petitioners are the accused Nos.1 to 3 for the alleged offence committed under Sections 498(A), 406 I.P.C. and Section 4 of the Dowry Prohibition Act in Crime No.637 of 2007. One Gnanalakshmi, who is the daughter of the de-facto complainant was married to the one Raman in the year 1998. The first and second petitioners are the parents of the said Raman. At the time of marriage, the de facto complainant gave away the essential articles to run the family. After marriage, the couple were residing at Ooty and a child was born to the said Gnanalakshmi. Unfortunately, the child died on the next day of the delivery. Thereafter, the said Raman went to Canada for higher studies and subsequently, obtained a job and settled there. At the insistence the said Raman, his wife Gnanalakshmi joined with him at Canada in the year 2002 and the de facto complainant also accompanied his daughter to Canada. There at Canada, the de facto complainant found that his daughter was not living happily with her husband, who demanded money, and subjected her for cruelty. Therefore, the de facto complainant gave 1600 Canadian Dollars which was worth about Rs.15,000/-. But not satisfied with the same, the husband demanded more money and to meet the demand, the de facto complainant made arrangement of 2,500 Canadian Dollar from the account of her daughter Gnanalakshmi at Rajapalayam Branch. Even thereafter, the de facto complainant received calls from his daughter that her husband was demanding more money and used to beat her and hence, the de facto complainant met the parents and brother viz., Vinayagamoorthy of the Raman, who were instigating him for such demand and cruelty and they justified the demands. The de facto complainant was meeting the demands on various times. When the de facto complainant requested the said Raman to send back his daughter to India he refused by saying that he has to get permission from his mother, who is the first petitioner and accordingly, when the first petitioner was requested, she demanded more dowry and refused to send his daughter back to India. This was continuing for some time and on 22.11.2006 the said Raman assaulted his wife so badly and she died. The Canadian Police filed a case of murder and intimated the death of the victim. **The allegation of the de facto complainant is that only on the instigation of the petitioners, the said Raman had demanded dowry and subjected her for cruelty and ultimately murdered her**.

3.A case was registered in Crime No.637 of 2007 based on the complaint given by the de facto complainant against the petitioners. On completion of investigation, the respondent police has filed a charge-sheet against A1 and A2 under Section 498(A), 406 and Section 4(1)(A) of Dowry Prohibition Act and against A3 under Section 498, 406 read with 109 I.P.C. The petitioners have come forward before this Court for quashing the charge-sheet on the ground that the marriage took place in the year 1998; the husband had gone to Canada in the year 2000; only in the year 2002 the victim joined her husband and nearly for 2 years the victim was residing only with her parents;till 2006 the couple were living happily in Canada and till such time there was no complaint of cruelty or dowry demand. **Further, the petitioners contended that their son is facing criminal prosecution at Canada for the death of the victim and the petitioners have nothing to do with the said crime. Moreover, the de facto complaint gave the said complaint only on 17.04.2007, which is after five months after the death of the victim by raising false allegation without any material and there is no evidence to constitute the said offences or make out a case against the petitioners**.

4.Heard the learned counsel for the petitioners and the learned Government Advocate (Crl.side).

5.The de facto complainant also appeared as intervenor through counsel and was heard.

6.The learned counsel for the petitioners would submit that the deceased never lived with the petitioners after the marriage and there is no materials to show that they have subjected her for cruelty or instigated of demand of dowry as alleged by the de facto complainant. The learned counsel also pointed out that the petitioners are aged parents and the third petitioner is the brother of the said Raman and all of them have nothing to do with the said offence and only to harass the petitioners, the de facto complainant has falsely implicated them. The learned counsel relied on a decision of the Supreme Court reported in II (2004) DMC 371 (SC) (Y.Abraham Ajith and others Vs. Inspector of Police, Chennai and another).

7.The learned Government Advocate (Crl.side) would submit that on a direction given by this Court in Crl.O.P.No.5723 of 2007 a case has been registered in Crime No.637 of 2007 under Sections 498(A), 406 r/w 109 I.P.C. and Section 4 of the Dowry Prohibition Act. The learned Government Advocate also pointed out that the investigation was over and charge-sheet was also laid against the petitioners and the same is pending for examination of witnesses.

8.The learned counsel for the intervenor would submit that there were ample evidences to show that the petitioners have subjected the victim for cruelty and demanded dowry which has to be proved only through a trial and quashing of the entire proceedings as against the petitioners is unwarranted and against law.

9.The specific charge against A1 and A2 are under Sections 498-A and 406 I.P.C. and under Section 4(1)(a) of the Dowry Prohibition Act and as against A3 under Section 498-A, 406 r/w 109 I.P.C. The parents of the deceased had spoken about the entire incident and two other witnesses were examined to corroborate de facto complainant and his wife. The Senior Branch Manager of Bank of Baroda had been examined to speak about the money transaction. Four more witnesses were examined to speak about the betrothal ceremony and marriage ceremony and three witnesses were examined to speak about bringing the dead body of the said Gnanalakshmi from Canada and speak about funeral ceremony of the said victim.

10.The case of the petitioners is that all the allegations contained in the complaint are only against the husband of the victim and there is no direct evidence against the petitioner to attract the ingredients of Section 498A, 406 and 4(1)(a) of the Dowry Prohibition Act. The only allegation by the de facto complainant is that they were instigating the husband to do the said offences. The learned counsel for the petitioners pointed out that the marriage took place in the year 1998 and there was no compliant of demand of dowry and after the marriage the couple were residing at Oorty for two years and they never lived with the petitioners. According to petitioners, from the year 2000 to 2002 the victim was living with the de facto complainant and there was no complaint of dowry demand or allegation of cruelty; the victim left for Canada along with the de fact complainant and was living till 2006 and the petitioners never went to Canad and that being so, the allegation that the petitioners committed offences under Sections 498(A), 406 and Section 4 of the Dowry Prohibition Act will not arise. According to the petitioners, the de facto complainant has bent upon to harass the petitioners who are innocent and whatever being the fault of their son they cannot be punished under the alleged offences.

11.The only point for consideration arises whether this Court can exercise its powers under Section 482 Cr.P.C. to quash the charges levelled against the petitioners at this stage and whether the continuance of the proceeding will amount to abuse of process of law?

12.The instant case is an unfortunate episode of a married women who lost her life at the hands of her husband in a foreign soil. The father of the victim alleges demand of dowry and cruelty as the cause of death. However, the Canadian law has taken care to punish the offender and its understood that the husband was charged with murder.

13.But the anxiety of the saddened father does not end there,and a complaint was given by him against the parents and brother who are also under similar torment.

14.Numerous cases have been filed against the in-laws and the relatives for cruelty and for dowry demand either by the victim or by their parents. In my opinion, there are three categories of in-laws and relatives.

The first category is, the active participants;

The second category is, the mute/silent spectators; they will neither resent nor object their son’s actions; and some time their position is precarious,as they are dependants;

The third category is, objecting, resenting parents,who disassociate themselves from the perpetrators.

15.I have no doubt in my mind that the 3rd category cannot be fastened with any of the offences as they stand clear. The first category are the active participants, directly or indirectly, who are guilty of the offences subject to evidences and presumptions. If they are directly involved in the offence, the provisions under Section 498-A, or 304 B of IPC and provisions under D.P.Act will take care and if they are indirectly involved Section 306 or 109 I.P.C. will be pressed in to service.

16.As far as the second category is concerned, they are in a different position and they are some time nearer to the third category or some time nearer to first category.

17. In any event, We are bound by rule of law.

Coming to the present case, the first and second petitioners, who are the mother-in-law and father-in-law , are charged for the offence under Section 498-A, 406 I.P.C and under Section 4 of Dowry Prohibition Act and the 3rd petitioner who is the brother-in-law, is charged for instigating the above said offences under section 109 of IPC.

18.The Section 498-A of I.P.C., reads as follows:-

"*498-A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine*."

*Explanation -For the purpose of this section ,"cruelty" means –

(a)…….

(b)harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand of any property or valuable security or is on account of failure by her or any person related to her to meet such demand*.

19.The Section 406 of I.P.C., reads as follows:-

"*Punishment for criminal breach of trust:- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for term which may extend to three years, or with fine, or with both*."

Section 4 of Dowry Prohibition Act reads as follows:-

*Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment fro a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees*:

Section 2 of Dowry Prohibition Act reads as follows:-

"*2.Definition of "dowry" – In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b)by the parents of either party to a marriage or by any other person, to either party to the marriage or to ay other person; at or before [or
any time after the marriage] [in connection with the marriage of the
said parties, but does not included] dower or mahr in the case of persons to whom the Muslim Personal law (Shariat) applies*.

20.One of the charge is under section 406 of I.P.C, for criminal breach of trust. Where is the entrustment of property or dishonest misappropriation?

21.The Hon’ble Supreme Court in Rishi Anand Vs. Govt. of NCT of Delhi reported in (2002 (4) SCC 72), has held as follows:-

""*6. …. These alleged acts which took place beyond the territory of India, even if assumed to be correct, does not make out a case to proceed against the first appellant for an offence under Section 406 IPC. The High Court, in exercise of its jurisdiction under Section 482 CrPC, ought to have quashed the criminal proceedings against the 1st appellant*.

22.The another charge is under section 4 of the Dowry Prohibition Act. To attract the ingredients of section 4 of Dowry Prohibition Act, there must be some specific allegations of demand of Dowry as defined in the Act. "Dowry" means any property or valuable security given or agreed to be given either directly or indirectly-before or any time after the marriage and in connection with the marriage of the said parties. Even the de facto complainant never used the word ‘dowry’.

23.Yet another charge is under section 498 A of I.P.C. **Even according to the de facto complainant, the petitioners never lived with the deceased at any point of time during her eight years of marriage. The defacto complainant and other witnesses in their statement would state that the husband was demanding money and subjecting the deceased for cruelty in Canada. According to them, when the same was complained to the petitioners, they either acted indifferently or justified the demands of their son by stating that why not the defacto complainant meet the demand. This happened in the year 2003**.

24.Cruelty must be either physical or mental or harassment of the women where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand of any property or valuable security. It is pertinent to note that the alleged cruelty or harassment should be directed towards the woman. The statements given by the defacto complainant or by the other witnesses would neither indicate cruelty nor harassment of the women, directly or indirectly. Obsoletely there is no material to involve the 3rd petitioner under Section 109 I.P.C. for instigation. Moreover the demands and payments where during the period 26.9.2002 to 11.5.2004.The victim died on 22.11.2006 and the complaint was made on 17.4.2007.

25.**It is also pertinent to note that the first petitioner is aged about 55 years and the second petitioner is aged about 65 years,living away from their son**. In my opinion, the petitioners would fall under the second category,never resenting ,non objecting and some time justifying, parents. Should they be subjected for a trial?

26.In 1992(1) SCC 335 (State of Haryana and others Vs.Bhajanlal and others) the Honb’le Supreme Court has laid down the principles governing the exercise of powers under section 482 Cr.P.C. These principles have been followed in catena of cases and it is a settled principle that the powers of quashing the criminal proceeding should be exercised very sparingly and in rarest of rare cases. Certain guidelines are also given where the powers can be exercised and the guidelines no. 7 reads as follows;

"*(7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private or personal grudge*."

**27.In my considered view, in the instant case, the motive is only to wreck vengeance and the allegations are vexatious and it is a fit case to be interfered with under Section 482 of Cr.P.C., otherwise the continuance of which, will amount to abuse of process of law**.

28.In the result, this petition is allowed and the charge-sheet against the petitioners in C.C.No.333 of 2008 pending on the file of the learned Judicial Magistrate, Rajapalayam, in Crime No.637 of 2007, is hereby quashed. Consequently, connected miscellaneous petitions are closed.

nbj

To

1.The Judicial Magistrate,
Rajapalayam.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

Wife commits suicide in her brother’s house. NO dowry demand proven. Still hubby has to fight 13 years for justice. HC acquits hubby and co. Parents of Wife & Hubby related before marriage !! Still wife’s father thinks his daughter has been murdered, gives a dowry complaint, investigation and court machinery set in motion and it takes 13 years to get out of the claws !! Two lives gone, the woman – suicide, and the man / her husband – 13 years stigma and suffering

Notes
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* PW 5 is the brother in law of A2 !
* Wife commits suicide in PW5’s house
* Wife and husband have gone there to see the new born baby
* Still father of dead woman suspects the his daughter was killed so files case
* After 13 years the HC exonerates the hubby

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CASE FROM JUDIS NET SITE FOR MADRAS HC
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.02.2011

CORAM

THE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMY

Criminal Appeal No. 1530 of 2002

1.Kuppathai
2.Rajendran … Appellants/A.1 and A.2

— vs —

State by Inspector of Police,
Nagamam Police Station,
Coimbatore District. … Respondent/Complainant

Criminal Appeal filed under Section 374 of the code of Criminal Procedure, against the conviction and sentence made against them in the judgement dated 8.10.2002 and made in S.C.No.338 of 2000 on the file of the Mahalir Court, Coimbatore.

For Appellants : Mr.T.P.Manoharan
For Respondent : Mr. N.Kumanan, GA (Crl.side)

J U D G M E N T

The appellants are the accused 1 and 2 in S.C.No.338 of 2000 on the file of the Mahalir Court, Coimbatore and they stand convicted for the offence under Section 4 of the Dowry Prohibition Act, 1961 and sentenced to undergo six months rigorous imprisonment each and to pay a fine of Rs.1,000/- each, in default, to undergo two weeks simple imprisonment; convicted for the offence under Section 304-B IPC and sentenced to undergo seven years rigorous imprisonment each and convicted for the offence under Section 498-A IPC and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo three months simple imprisonment and the sentence of imprisonment are ordered to run concurrently. Against the said conviction and sentence, the present appeal has been filed by the appellants.

2. The case of the prosecution is as follows:-

A1 and A3 are husband and wife. Their sons are A2, A4 and their daughter is A5. The marriage of the second accused and the deceased was performed on 1.4.98. On 5.9.98 at about 3.00 p.m., the deceased had committed suicide. The case of the prosecution is at the time of the marriage, the family of the second accused demanded 10 sovereigns of gold jewels from the parents of the deceased. But the father of the deceased agreed to give only 7 sovereigns of gold jewels at the time of marriage and also agreed to give the balance 3 sovereigns of gold jewels in later occasion. After marriage, the second accused and the deceased were lived happily. During the Adi Festival, the father of the deceased has given dresses and Rs.501/- to his son-in-law and they stayed his father-in-law’s house for two days. Subsequently, the family of the second accused demanded the balance 3 sovereigns of gold jewels from the parents of the deceased. Since the father of the deceased has not given the agreed jewels and postponed, according to the case of the prosecution, the deceased has committed suicide due to the harassment of dowry demand.

(ii) PW.1 is the father of the deceased, who has spoken about the marriage of the second accused and the deceased as already stated above. According to him, 3 sovereigns of gold jewels have been left out and he agreed to present the same on subsequent dates. PW.1, the father of the deceased had deposed that the demand of the balance jewels was made by his daughter and she informed him that the accused family agreed to establish for her stay with her husband in the separate family in a rental building. On 5.9.98 at 3.00 pm., PW.1 and his wife were working in the field. PW.1’s brother’s son came to the field and informed him that his daughter was unwell and called them to his house. Then, PW.1 gone to the house. His wife also came behind him. He saw the dead body of the deceased lying. Subsequently, on seeing this, PW.1 gave a complaint-Ex.P1 to the Police.

(iii) PW.2 is the brother of PW.1. PW.3 is wife of PW.2. PW.1 and PW.4 are the husband and wife. PW.5, is the brother in law of A2, who turned hostile and who deposed that the occurrence said to have taken place on 4.9.98, a day before her death, they came here to see a new born baby and the accused and deceased were there. PW.6 is the Village Administrative Officer. PW.7 is the Doctor, who was working at Pollachi Government Hospital conducted post-mortem he who issued the post mortem certificate Ex.P3, mentioning that the death was due to hanging.

(iv) PW8 is the Revenue Divisional Officer, who conducted enquiry and gave his report under Ex.P4. PW.9 is the Inspector of Police, who registered F.I.R. PW.10 is the Sub-Inspector of Police, who conducted investigation and after completing the investigation, he laid a charge sheet against the accused for the offences under section 4 of the Dowry Prohibition Act, 1961 and under Sections 498-A and 304-B of IPC.

3. On behalf of the prosecution, PWs.1 to 10 were examined and Exs.P1 to P6 were marked. On behalf of the accused, no witness was examined and no document was marked.

4. After considering the oral and documentary evidence, the trial Court has acquitted A3, A4 and A5 from the charges under Section 4 of Dowry Prohibition Act and under Sections 304-B and 498-A of IPC. and convicted only the appellants/accused 1 and 2. Hence, the appellants have preferred this criminal appeal.

5. The vehement contention of the learned counsel for the appellants is that there is no such demand was made by the accused from PW.1 and PW.1 also has not stated that he was subjected to any demand. Further, the occurrence had taken place only in the house of PW.5. Therefore, considering these aspects, the offence against the accused is not proved. Hence, he prayed for acquittal of the appellants.

6. The learned Government Advocate (Crl.Side) contended that admittedly, there was a demand for balance 3 sovereigns of gold jewels. Hence, demand of dowry has been proved. Hence, he has strongly objected the acquittal of the appellants and prayed that the judgement of the trial court has to be confirmed.

7. It is not in dispute that A1 and PW.1 are sister and brother. From the evidence of PW.1, it is clear that at the time of marriage, he has presented 7 sovereigns of gold jewels and he agreed to present the balance 3 sovereigns of gold jewels on subsequent events and the time has not been mentioned. Further, from the evidence of PW1, it is also clear that the newly married couple lived happily and they came to his house at the time of Adi festival. At that time, P.W.1 has given dresses and Rs.501/- to the second accused and he happily accepted it.

8. PW.1, in his entire evidence, he never stated that either A1 or A2 claimed the balance dowry from him. From the entire evidence, further it is seen that only the deceased asked 3 sovereigns of gold jewels and she informed PW.1 that she is going for separate housing and establishment which is close to the house of PW.5. Except these two lines, nothing is available in the evidence of PW.1. Therefore, I am of the view that there is no such demand has been established by the prosecution to show that the demand has been made by the accused 1 and 2.

9. The next question that arises for consideration is, in such a case, why PW.1 gave a complaint to the police. A perusal of the entire evidence, it is seen that PW.1 suspected that his daughter was murdered by the accused and that is the reason he gave a complaint. PW.2, mother of the deceased during chief examination, stated as follows:-

VERNACULAR (TAMIL) PORTION DELETED

10. From the evidence of PW.2, it is clear that they suspected that their daughter was murdered by the accused. It is pertinent to note that in this case, the occurrence had taken place in the house of PW.5, where they were gone to see the new born baby of PW.5. The trial court has not properly considered this aspect.

11. Therefore, I am of the view that the conviction and sentence imposed by the trial court for the offence under Section 4 of the Dowry Prohibition Act, 1961 and for the offences under Sections 304-B IPC and 498-A, are set aside and this criminal appeal is allowed. The appellants/accused 1 and 2 are acquitted of the charges. The bail bond executed by the appellants/accused 1 and 2 shall stand cancelled and the fine amount paid, if any, shall be refunded to them.

aes

To

1.Mahalir Court,
Coimbatore

2. Inspector of Police,
Nagamam Police Station,
Coimbatore District.

3.The Public Prosecutor
High Court,
Chennai

FAILED ATTEMPT to declare DV act sec 12,18,19 & 23 as unconstitutional, ultra vires and void. Madras HC

FAILED ATTEMPT at the Madras HC to declare DV act sec 12,18,19 & 23 as unconstitutional, ultra vires and void. Madras HC.

Madras HC refers to Delhi HC judgement, Article 15(3) and says DV act is not unconstitutional

Notes :

  • Problems erupt soon after marriage
  • Husband seeks divorce
  • Wife threatens 498a, then files 498a
  • Husband runs for and gets anticipatory bail
  • Wife goes on to file DV
  • Husband tried to get DV act declared as unconstitutional, ultra vires and void
  • HC rejects husband’s claim !!

**************************************************************

CASE FROM JUDIS DOT NET MADRAS HC WEBSITE

**************************************************************

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.04.2009
CORAM
THE HONOURABLE MR. JUSTICE K.VENKATARAMAN
Writ Petition No.28521 of 2008 and M.P.No.1 of 2008

1.Dennision Paulraj
2.Baby Merey
3.G.Devasagayam
4.Johnson Gunaraj Devasagayam
5.Jasmine Glory
6.Jhansi Rani … Petitioners

vs.

1.The Union of India, rep. by
Secretary,
Ministry of Law and Justice,
New Delhi.

2.Union of India, rep. by
Secretary,
Ministry of Women and Child
Development, New Delhi.

3.State of Tamil Nadu, rep. by
Secretary,
Department of Social Welfare,
Fort St. George, Chennai-9.

4.The Protection Officer,
District Social Welfare Office,
2nd Floor, Collector Office Campus,
Thiruvallur 602 001.

5.The Inspector,
All Women Police Station,
Teynampet, Chennai.

6.Mrs.Mayawinola … Respondents

Writ petition has filed filed under Article 226 of the Constitution of India to issue a writ of Declaration declaring that Sections 12, 18, 19 and 23 of the Protection of Women from Domestic Violence Act, 2005 (Central Act 43 of 2005) as unconstitutional, ultra vires and void.

For petitioners : Mr.K.Moorthy

For respondents : Mr.L.S.M.Hasan Fizal, G.A.,
for R.1 to R.5
M/s.Ram and Ram, for R.6

O R D E R

By consent, the main writ petition itself is taken up for final disposal.

2. The petitioners have come forward with the present writ petition for a declaration declaring Sections 12, 18, 19 and 23 of the Protection of Women from Domestic Violence Act, 2005 (Central Act 43 of 2005) as unconstitutional, ultra vires and void.

3. The short facts which are necessary for the disposal of the present writ petition, are set out here under:-

3.1. The first petitioner is the husband of the sixth respondent. Petitioners 2 and 3 are his parents. Petitioners 4 to 6 are his brother, sister in law and sister respectively. The first petitioner married the sixth respondent on 05.07.2004 at C.S.I. Trinity Church, Avadi. It is an arranged marriage. After the marriage, the sixth respondent demanded the first petitioner an extravagant and ultra modern life style and made all the other family members as servants for her simple needs and started picking up quarrels with everyone in the family for no reasons. Hence, the first petitioner had to prefer a petition under Section 22 of the Indian Divorce Act for judicial separation on the file of the learned Principal Judge, Family Court, Chennai, in O.P.No.887 of 2005 and the same is at the stage of enquiry.

3.2. Since the sixth respondent was continuously threatening the petitioners that she is going to prefer a criminal complaint against them, the petitioners approached this Court by filing Crl.O.P.No.6823 of 2005 seeking anticipatory bail and the same was dismissed as there was no case. After coming to know of the orders, the sixth respondent filed a complaint against the petitioners before the fifth respondent under Section 498-A of Indian Penal Code, which compelled the petitioners to approach this Court by filing Crl.O.P.No.10554 of 2005 seeking anticipatory bail and the same was granted by this Court.

3.3. The sixth respondent having failed in her malicious attempt, with an ulterior motive to harass the petitioners, filed an application under Sections 18, 19 and 23(2) of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as the Act) setting out false and frivolous particulars. The said private complaint filed by the sixth respondent in C.M.P.No.1772 of 2007 in unnumbered M.C.No. / 2007 on the file of the learned Judicial Magistrate No.II, Poonamallee, has been referred to the fourth respondent for conducting enquiry. The petitioners attended the enquiry before the fourth respondent and submitted the malicious intention of the sixth respondent.

3.4 Aggrieved against the calculative and ulterior motivated action of the sixth respondent, the petitioners were constrained to approach this Court to quash the proceedings of the private complaint given by the sixth respondent referred to above in Crl.O.P.No.1772 of 2007 and the same was dismissed on 02.04.2008.

3.5. The proceedings initiated under the said Act is a complete abuse of process of law, especially when it was initiated after the first petitioner filed a petition seeking judicial separation before the Family Court. Hence, the petitioners have approached this Court by filing the present writ petition challenging certain provisions of the said Act.

4. The main grounds on which the present writ petition has been filed are–

(i) Sections 4, 12, 18, 29 and 23 of the said Act are discriminatory and biased in favour of the wife and affect the right of life and liberty of the husband and his relatives.

(ii) The said Act does not permit the husband to file a complaint under the Act and hence, it is violative of Article 14 and 21 of the Constitution of India.

(iii) The proceedings before the learned Judicial Magistrate No.II, Poonamallee in Crl.O.P.No.1772 of 2007 is illegal, arbitrary and opposed to principles of natural justice and violative of Article 14 and 21 of the Constitution of India.

(iv) The reference by the learned Magistrate to the fourth respondent for an enquiry even though the sixth respondent voluntarily left the matrimonial home, is untenable.

(v) The proceedings before the learned Magistrate are violative of the rights of the husband and his relatives as per Section 12 of the Act as the proviso to Section 12 envisages a report being received from the fourth respondent by the learned Magistrate before passing any orders.

(vi) Section 23 of the said Act suffers from arbitrariness and confers unrestricted powers on the Magistrate and hence, ultra vires to the provisions of the Constitution of India.

5. On notice, learned counsel appearing for the sixth respondent would submit that —

(i) the said Act has been challenged before the Delhi High Court and the Delhi High Court has held that the said Act is not ultra vires and unconstitutional.

(ii) special protection given to women is intelligible differentia and hence, the contention on the side of the petitioners that the Act is enacted with a view to help only the female members cannot be accepted.

(iii) The petitioners filed a quash petition before this Court raising the same grounds and hence, they cannot be heard to raise the same grounds in the present writ petition.

(iv) No valid ground has been raised to declare few sections of the said Act as ultra vires.

6. I have considered the submissions made by the learned counsel appearing for the petitioners and the learned Government Advocate appearing for respondents 1 to 5 and the learned counsel appearing for the sixth respondent.

7. The main ground of attack on certain provisions of the Protection of Women from Domestic Violence Act, 2005 are that under the said Act, the husband cannot file any application, but only the wife can file applications. It is therefore, discriminatory and biased in favour of the wife affecting the right of life and liberty to the husband and his relatives, which is violative of Article 14 and 21 of the Constitution of India.

8. As rightly contended by the learned counsel appearing for the sixth respondent, giving certain preferential treatment to the wife and treating them as a special category cannot be termed as violative of either Article 14 or Article 16 of the Constitution of India. Though Article 15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex or place of birth, however, Article 15 (3) states "nothing in this Article shall prevent the State from making any special provision for women and children". Thus, the Constitution itself provides special provision for women and children. It has been widely resorted to and the Courts have upheld the validity of the special measures in legislation and executive orders favouring women. Thus, when the Constitution itself provides for making special provision for women and children, the contention on the side of the petitioners that there could be no special treatment for women is totally untenable. In tune with Article 15(3) of the Constitution of India, the State has thought it fit to frame a special legislation for women and thus, the Protection of Women from Domestic Violence Act, 2005 came into force.

9. In A.I.R. 1954 S.C. 321 Yusuf Abdul Aziz v. State of Bombay, the Hon’ble Apex Court, while dealing with the question whether Section 497 of India Penal code contravenes Article 14 and 15 of the Constitution of India, has held that since sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children by clause (3) of Article 15. Articles 14 and 15 thus, read together validate the last sentence of Section 497 I.P.C. which prohibits the woman from being punished as an abettor of the offence of adultery. Para 6 of the said judgment is usefully extracted here under:-

" Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in S.497 Penal Code."

10. In (2003) 10 Supreme Court Cases 78 Sanaboina Satyanarayana v. Govt. of A.P. and others, the Hon’ble Apex Court was posed with a question whether granting remission of sentence can be made excluding those prisoners who were convicted for life and for crimes against women. It was held by the Hon’ble Apex Court that considering Article 15 (3) and 14, exclusion of prisoners convicted of crimes against women from scheme of remission, is a sound, just, reasonable, proper and it necessitated in the larger interest of the society and greater public interest.

11. In 1985 SC 1695 Partap Singh v. Union of India, the question that was posted before the Hon’ble Apex Court was about the constitutional validity of Section 14 (1) of the Hindu Succession Act. The Hon’ble Apex Court in the said judgment has clearly held that in view of Article 15 (3) of the Constitution of India there is hardly any justification for the males belonging to the Hindu community to raise any objection to the beneficent provisions contained in Section 14 (1) of the Act on the ground of hostile discrimination. Para 6 of the said judgment is usefully extracted here under:-

" There is very little substance in the second condition raised by the petitioner also. The submission made on behalf of the petitioner in this case overlooks the benign constitutional provision in clause (3) of Article 15 of the Constitution which provides that nothing in Article 15 shall prevent the State from making any special provision for women and children. The said provision overrides clause (1) of Article 15 of the Constitution which provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Section 14 (1) of the Act was enacted to remedy to some extent the plight of a Hindu woman who could not claim absolute interest in the properties inherited by her from her husband but who could only enjoy them with all the restrictions attached to a widow’s estate under the Hindu law. There is now hardly any justification for the males belonging to Hindu community to raise any objection to the beneficent provisions contained in Section 14 (1) of the Act on the ground of hostile discrimination. The above provision is further protected by the express provision contained in clause (3) of Article 15, since it is a special provision enacted for the benefit of Hindu women. We do not find any merit in the Writ Petition. The writ petition is dismissed. Consequently, the special leave petition also has to be dismissed. It is accordingly, dismissed."

12. Again, in A.I.R. 1985 Supreme Court 1618 Sowmithri Vishnu v. Union of India, the Hon’ble Apex Court has held while considering Section 497 of I.P.C., that it does not discriminate between man and woman by conferring right only on husband to prosecute the adulterer and hence, it is not violative of Article 14 or Article 15 of the Constitution of India.

13. In fact, the Delhi High Court in W.P (Crl.) No.425 of 2008, by an order dated 07.04.2008 had upheld the provisions of the said Act. Para 4 of the said judgment is usefully extracted here under:-

" Domestic violence is a world wide phenomenon and has been discussed in International fora, including the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). The United Nations Committee Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) has recommended that States should act to protect women against violence of any kind, especially that occurring within the family. There is a perception, not unfounded or unjustified, that the lot and fate of women in India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorative measures against exploitation of women. The argument that the Act is ultra virus the Constitution of India because it accords protection only to women and not to men, is therefore, wholly devoid of any merit. We do not rule out the possibility of a man becoming the victim of domestic violence, but such cases would be few and far between, thus not requiring or justifying the protection of parliament."

14. At this juncture, learned counsel appearing for the petitioners would submit that the said Act can only be prospective and not retrospective and further submitted that the petitioners are not liable for the charges that have been levelled against them. The arguments raised by the learned counsel appearing for the petitioners are to be considered by the authority concerned before whom the application filed by the sixth respondent is pending and the same cannot be canvassed before this Court.

15. For all the reasons stated above, I am not inclined to hold that Sections 12, 18, 19 and 23 of the Protection of Women from Domestic Violence Act, 2005 (Central Act 43 of 2005) are unconstitutional, ultra vires and void and the writ petition is liable to be dismissed and accordingly, dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.

sbi

To

1.The Secretary,
Union of India,
Ministry of Law and Justice,
New Delhi.

2.The Secretary,
Union of India,
Ministry of Women and Child
Development, New Delhi.

3.The Secretary,
Department of Social Welfare,
Fort St. George, Chennai-9.

4.The Protection Officer,
District Social Welfare Office,
2nd Floor, Collector Office Campus,
Thiruvallur 602 001.

5.The Inspector,
All Women Police Station,
Teynampet,
Chennai

Woman jailed lying police, taxi driver sexually assaulted her in cab. He proves innocence with app recording conversation

Woman jailed for lying to police that taxi driver had sexually assaulted her in his cab after he proved his innocence with a smartphone app recording of their conversation

  • Astria Berwick, 27, falsely accused Mohammed Asif of attacking her in taxi
  • Said he sexually assaulted her and slashed her face with a knife
  • Mr Asif had been recording journeys using app on his mobile phone
  • The app was switched on because the CCTV in his cab was broken
  • Berwick jailed for 16 months at Nottingham Crown Court
  • Judge said ‘wholly innocent’ father-of-two was ‘saved’ by his phone

By Kerry Mcdermott

PUBLISHED:

11:22 GMT, 4 July 2013

| UPDATED:

13:30 GMT, 4 July 2013

A woman who falsely accused a taxi driver of sexually assaulting her at knifepoint has been jailed – after he exposed her ‘outrageous’ lies thanks to an app on his mobile phone.

Astria Berwick, 27, told police Mohammed Asif, 34, had subjected her to a terrifying attack in his cab as he drove her home from Nottingham city centre in February.

But the father-of-two was able to prove his innocence with an app he was using to record his journeys because the CCTV in his cab was broken.

'Outrageous behaviour': After travelling home from a night out in Mohammed Asif's taxi, Astria Berwick called police and falsely accused the father-of-two of sexually assaulting her in the cab

‘Outrageous behaviour’: After travelling home from a night out in Mohammed Asif’s taxi, Astria Berwick called police and falsely accused the father-of-two of sexually assaulting her in the cab

'Wholly innocent': Mr Asif, 34, was able to prove his innocence thanks to an app on his mobile phone which captured an audio recording of Berwick's cab journey

‘Wholly innocent’: Mr Asif, 34, was able to prove his innocence thanks to an app on his mobile phone which captured an audio recording of Berwick’s cab journey

Berwick has now been jailed for 16 months after she admitted perverting the course of justice.

A judge at Nottingham Crown Court condemned Berwick’s ‘outrageous behaviour’ after saying she had invented the story for ‘some unaccountable reason’.

Mr Asif told the court he had picked up Berwick in Nottingham City Centre at around 4.50pm on February 20, and that she had seemed ‘drunk but not out of it’.

He said that, aside from her asking him to pull over in a layby so that she could be sick, the 11-mile journey to her home in Bingham was an unremarkable one.

‘She opened the door, said "thank you very much" and said "thanks" again as she shut the door and walked away,’ he said.

But Berwick then called police and claimed the taxi driver had sexually assaulted her and slashed her face with a knife.

Within hours Mr Asif was pulled over by a police van, handcuffed and arrested on suspicion of sexual assault.

‘I just thought "my god, I’ve done nothing wrong, why would they say that?",’ said Mr Asif, who told how he broke down in the police cell after his arrest.

Mr Asif said he still has trouble sleeping as a result of Berwick's false accusations
Berwick was jailed for 16 months for perverting the course of justice

Lies: Mr Asif, who told how he broke down in a police cell after he was falsely accused of sexual assault, said Berwick’s lies had torn his life apart

Mr Asif, who has a son, 14, and a daughter, eight, said when he received the call from the taxi firm headquarters to go and collect Berwick, he was warned she was drunk.

‘When I got the call to pick this woman up, my boss told me that she was drunk and that I should get the money up front in case she didn’t pay,’ he explained.

‘I knew my CCTV was not working so decided to use the voice recorder on my phone and dropped her off as normal, she seemed to be a happy customer.’

Although Mr Asif was able to use the audio recording on his Samsung Galaxy smartphone to prove Berwick was lying, the taxi driver said the experience had torn his life apart.

‘She changed my life. I’m completely different now. I’m scared to go out,’ he said, adding that he was unable to work for a month after his arrest and lost a stone in weight.

‘I keep thinking, "I just dropped her off, she was just a normal passenger, why has she done that?"

Mr Asif, of Carlton, Nottingham, told how he felt ‘really lucky’ he had switched on the app on the day Berwick got into his cab, and said that without it he believed he would now be on remand waiting to face a judge and jury.

Mr Asif said: ‘If I ever met her again, although I don’t want to, I’d just ask "why?"’

Judge Michael Stokes QC, Recorder of Nottingham, said as Berwick was sentenced: ‘This was outrageous behaviour by the defendant against a wholly innocent man who had been saved by the recording on his phone.’

On her Facebook page, Berwick describes how she is ‘honest as she doesn’t like lying (that’s probably my downfall, too honest)’, and ‘enjoys a good joke (sometimes at other people’s expense)’.

She lists her favourite quotations as ‘do unto others as they would do unto you’, and ‘what comes around goes around’.

Nottinghamshire Police confirmed that Berwick also alleged that Mr Asif had slashed her face with a knife, but her story proved untrue.

DC Laura Clarke from Public Protection at Nottingham Police said: ‘Falsely reporting crimes like this does not just cause harm to the unsuspecting victim but also true victims of sexual offences may be reluctant to report crimes against them for fear of not being believed.

‘False allegations have a huge impact on those people falsely accused, for them, their family and friends, it can be life changing.

‘Nottinghamshire Police investigate every crime thoroughly to discover the truth.’

Read more: http://www.dailymail.co.uk/news/article-2355655/Astria-Berwick-Woman-jailed-lying-police-taxi-driver-sexually-assaulted-cab.html#ixzz2Y6Jr22et

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