IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.10.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.910 of 2010 Vinoth Kumar .. Petitioner/Accused Vs State Rep by Inspector of Police All Women Police Station Chidambaram (Crime No.5/2006) .. Respondent/Complainant PRAYER: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C. to call for the records pertaining to the judgment dated 29.6.2010 passed in C.A.No.66 of 2008 on the file of the learned Addl. District Judge (Fast Track Court No.1), Chidambaram, confirming the judgment and sentence dated 19.06.2008 passed in C.C.No.87/2006 on the file of the District Munsif and Judicial Magistrate, Parangipettai and set aside the same. For Petitioner : Mr.S.T.Raja for M/s.Om Sai Ram For Respondent : Mr.I.Paul Nobel Devakumar, Government Advocate (Crl.Side) O R D E R This Criminal Revision Case has been filed against the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.1), Chidambaram dated 29.6.2010 made in C.A.No.66 of 2008, confirming the conviction recorded and the sentence imposed by the learned District Munsif cum Judicial Magistrate, Parangipettai in C.C.No.87/2006. 2. The case of the prosecution, in brief, can be stated as follows:- A case was registered on the file of the All Women Police Station, Chidambaram based on the complaint of P.W.1 to the effect that the petitioner by making false promise of marriage, made P.W.1 to agree for having sexual intercourse with the petitioner and after having such sexual intercourse with the petitioner he went https://hcservices.ecourts.gov.in/hcservices/ back from the promise and demanded a sum of Rs.15,000/- cash, 15 sovereigns of gold jewels and a TVS-50 vehicle as dowry for fulfilling the said promise. After investigation, the Investigating Officer submitted a final report alleging commission of offences punishable under Section 417 IPC and Section 4 of Dowry Prohibition Act. The same was taken on file by the District Munsif cum Judicial Magistrate, Parangipettai as C.C.No.87/2006. 3. In the trial that followed after recording the plea of the petitioner herein, totally 10 witnesses were examined as P.Ws.1 to 10 and six documents were marked as Exs.P1 to P6. The X-Ray films concerning P.W.1 and the petitioner, were produced as M.Os.1 and 2. After the petitioner was given an opportunity to explain the incriminating materials found in the evidence adduced on the side of the prosecution by questioning him under Section 313(1)(b) of Cr.P.C. and after recording his statement that he was not having oral or documentary evidence, the learned District Munsif cum Judicial Magistrate, considered the evidence in the light of the arguments advanced on either side and upon such consideration came to the conclusion that both the charges stood proved and convicted the petitioner herein for the said offences and sentenced him to undergo one year rigorous imprisonment and pay a fine of Rs.10,000/- with a default sentence of three months simple imprisonment for the offence under Section 417 I.P.C and 2 years rigorous imprisonment and a fine of Rs.10,000/- with a default sentence of three months simple imprisonment for the offence under Section 4 of the Dowry Prohibition Act. 4. As against the said judgment of conviction and sentence dated 19.06.2008, the petitioner preferred an appeal in C.A.No.66/2008 before the Sessions Court, which came to be disposed of by the Additional District and Sessions Judge (Fast Track Court No.1), Chidambaram by a judgment dated 29.06.2010 confirming the conviction recorded and the sentence imposed by the trial court. Aggrieved by and challenging the same, the petitioner has approached this court by way of the present Criminal Revision Case. 5. Notice before admission was issued and the learned Government Advocate (Crl.Side) entered appearance on behalf of the respondent police. The submissions made on both sides were heard. The judgments of both courts and the other records produced along with the Revision Petition were also perused. 6. Clear allegations have been made against the petitioner that he made P.W.1 to agree for having sexual intercourse with him after making a promise to marry her and that subsequently he refused to fulfill the promise and on the other hand demanded dowry as a consideration for fulfilling the said promise with the intention of avoiding marrying P.W.1. It is the main contention of the learned counsel for the petitioner, who figured as accused before the trial court, that he was not given sufficient opportunity to defend himself, which shall be obvious from the fact https://hcservices.ecourts.gov.in/hcservices/ that except one, all other witnesses examined on the side of the prosecution were not cross-examined. Yet another contention raised by the learned counsel for the petitioner is that there was an unexplained delay of six months in lodging the complaint and setting the law in motion. The third contention raised by the learned counsel for the petitioner is that except the official witnesses, all other witnesses, who deposed in support of the prosecution version, are close relatives of the de-facto complainant, namely P.W.1 and the lone independent witness, namely P.W.7, did not support the prosecution version. It is the further contention of the learned counsel for the petitioner that the above said aspect was not properly considered, either by the trial court or by the appellate court and that had it been properly considered, the courts below would have held that none of the charges leveled against the petitioner was proved. 7. Of course it is the cardinal principle of criminal jurisprudence that no one should be condemned without affording a reasonable opportunity of defending himself against the case put- forth by the prosecution. In this case, this court, is not in a position to accept the contention of the learned counsel for the petitioner that there is denial of such an opportunity. In fact the petitioner was represented by a counsel of his choice right from the beginning. Though he was represented by a counsel of his choice, he did not cross-examine any one of the prosecution witnesses except P.W.4, the Medical Officer. Three witnesses were examined before the examination of P.W.4 and six witnesses were examined after the examination of P.W.4. The petitioner had chosen to cross-examine P.W.4 alone and deliberately omitted and evaded cross-examining other witnesses. The learned counsel for the petitioner has made a meek attempt to contend that due to ill health, the counsel engaged by the petitioner before the trial court was not able to cross-examine those prosecution witnesses and in such circumstances, the court ought to have appointed a state brief advocate to represent the petitioner. 8. There is no substance in the above said contention also. Prior to the examination of P.W.4, three witnesses were examined. The learned counsel engaged by the petitioner before the trial court was available to cross-examine P.W.4. At that point of time, the petitioner could have sought for an order recalling the witnesses examined prior to the examination of P.W.4 for being subjected to cross-examination, which the petitioner failed to do. Even after the completion of the recording of evidence on the side of the prosecution before being questioned under Section 313(1)(b), the petitioner did not come forward to seek recalling of the prosecution witnesses, who were not cross-examined for the purpose of subjecting them to cross-examination. On the other hand, after the examination of the accused under Section 313(1)(b) and an opportunity was given to him to examine defence witnesses, he did not avail that opportunity, either by examining himself or examining any other witness on his side. On the other hand, he https://hcservices.ecourts.gov.in/hcservices/ chose to file a petition under Section 311 Cr.P.C seeking an order recalling P.Ws.1 to 3 and P.W.5 alone for cross-examination. Though the said petition was allowed, the said witnesses were summoned and the said witnesses were present on three hearing dates, the petitioner did not avail the opportunity given to him to cross-examine those witnesses. At no point of time, the petitioner prayed for the appointment of a state brief counsel to defend the case on his behalf. All along he was represented by a counsel of his choice. 9. At the cost of repetition, it is pointed out here that P.Ws.1 to 3 were examined before ever P.W.4 was examined. The petitioner, who chose to cross-examine P.W.4 with the help of his counsel, has not chosen to seek recalling of P.Ws.1 to 3 at that point of time. Only at the fag end of the trial, he chose to file the application under Section 311 Cr.P.C for the cross-examination of P.Ws.1 to 3 and P.W.5. The other witnesses were never sought to be cross-examined. The very course of action adopted by the petitioner makes it obvious that he wanted to protract the case as long as possible, so that the victim would forget the wrong caused to her and settle in her life and consequently lose interest in prosecuting the petitioner. That is the reason why, even though a second opportunity was afforded to the petitioner to cross-examine the prosecution witnesses when his petition under section 311 Cr.P.C. was allowed and the case stood adjourned on three occasions at the instance of the petitioner, he did not come forward to cross-examine and left the case to be decided based on the evidence adduced by the prosecution witnesses including six witnesses, who were not cross-examined. Under such circumstances, there is no iota of justification on the part of the petitioner in raising a contention that he was denied reasonable opportunity of defending himself before the trial court. The very same contention was raised before the learned appellate judge and the learned appellate judge has rejected the same as untenable. 10. So far as the other contentions are concerned, they are pertaining to the merits of the case. Of course, it is true that the alleged occurrence of cheating, namely making P.W.1 to share her bed with the petitioner on a false promise of marrying her, took place as per the prosecution case, six months prior to the date of complaint. But the mere fact that there was such a delay alone shall not be enough to disbelieve the case of the prosecution. Only when such delay is unexplained, the same will cause a reasonable doubt on the prosecution version affecting the prosecution case. In the case on hand, clear explanation has been offered for the delay, not only in the complaint itself, but also in the evidence adduced through P.Ws.1 to 3. The explanation offered is that on the date of occurrence, they were seen by P.W.3, the mother of P.W.1 and on being reprimanded, the petitioner gave a promise to her also to marry her daughter, namely P.W.1. The said evidence of P.Ws.1 and 3 were also corroborated by other witnesses. It is the further evidence adduced through the prosecution https://hcservices.ecourts.gov.in/hcservices/ witnesses that when they urged him to marry P.W.1 subsequent to the date of occurrence he was giving out that he would marry her after seeing his sister married off and thus the petitioner, by his act itself made the de-facto complainant wait for six months and that only on his demand of dowry to fulfill his promise, the de-facto complainant smelt the colour of the petitioner and approached the police with the complaint. Though the independent witness, namely P.W.7, would not have supported the case of the prosecution that there was a panchayat with the elders of the village before whom also the petitioner repeated his promise to marry P.W.1, the evidence in this regard adduced by other witnesses remain unchallenged and uncontraverted. No in-built inconsistency can be found in the evidence of those witnesses. Only in the process of persuading the petitioner to marry P.W.1, six months time had been taken. Therefore, the prosecution has satisfactorily explained the reason for the delay in setting the law in motion. 11. As pointed out supra, the prosecution witnesses have tendered clear evidence in proof of the charges leveled against the petitioner. The evidence of P.Ws.4, 6 and 7 are also there to prove that P.W.1 had been subjected to sexual intercourse and the petitioner was very much potent and capable of having sexual intercourse with a woman like P.W.1. The trial court, on a meticulous evaluation of evidence adduced on the side of the prosecution, came to the conclusion that both the charges stood proved. The lower appellate court also re-appraised the evidence and on such re-appreciation concurred with the finding of the trial court. 12. Normally, a court of revision shall not venture to re- appraise the evidence unless the plea of perversity is raised and only for the limited purpose of finding whether the conclusion arrived at by the court below is perverse, the evidence can be looked into. Upon considering the judgments of the courts below and the materials placed by the petitioner in this revision, this court is of the considered view that there is no defect or infirmity, much less perversity, in the finding of the trial court as well as the appellate court holding the petitioner guilty of the offences punishable under Sections 417 IPC and Section 4 of the Dowry Prohibition Act. Therefore, there is no scope for interfering with the conviction recorded by the trial court and confirmed by the appellate court for the above said offences. 13. Considering the circumstances under which the petitioner is said to have committed the offence and the plight of the victim, namely P.W.1, and also the fact that the petitioner had been trying to drag on the case as long as possible by adopting ingenious methods, this court does not deem it fit to interfere with the quantum of punishment also. For all the reasons stated above, it is hereby held that the Criminal Revision Case does not have any merit in it and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 14. Accordingly, the Criminal Revision Case is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr/- To 1)The Addl. District Judge (Fast Track Court No.1), Chidambaram 2)The District Munsif cum Judicial Magistrate, Parangipettai 3.Do Thro the Chief Judl.Magistrate, Cuddalore. 4)The Inspector of Police All Women Police Station Chidambaram (Crime No.5/2006) 5)The Public Prosecutor, High Court, Madras-104 CRL.R.C.No.910 of 2010 gv(co) pmk.8.11.2010 https://hcservices.ecourts.gov.in/hcservices/