- (1.) PETITIONERS are A2 and A3 in C. C. No. 24 of 1987 on the file of the Judicial First Class Magistrate, Chidambaram. The other accused who is arrayed as A1 is Thiruchelvam who is directly charged for having committed adultery with P. W. 3, the wife of the respondent Udaya Sundaram punishable under sec. 497, Indian Penal Code, the petitioners are brothers and P. W. 3 Saraswathi is their sister. Saraswathi married the respondent on 12. 9. 1979 at Chidambaram. The respondents works in the Co-operative Milk Society at Chidambaram as a Typist and resides at No. 68, Mannargudi Street, Chidambaram. His wife saraswathi examined as P. W. 3 is a Junior Assistant in Villiyanur Commune panchayat and she normally resides at Villiyanur itself, away from her husband. It appears from the evidence on record that there have been ill-feelings between the petitioners and the respondent as well as between the petitioners and P. W. 3. While so, it is the allegation of the respondent in his complaint that Thiruchelvam Al committed the offence of adultery in his house at childambaram with his wife P. W. 3 at or about 2 P. M. , on 28. 12. 1986 in his absence. The occurrence was seen by Sridharan examined as P. W. 2 who happens to be the house owner of premises No. 68, Mannargudi Street , Chidambaram. When P. W. 2 knocked the door after the incident, it is the prosecution case that the first accused, thiruchelvam ran away while P. W3 stated that her act could be informed to the respondent and also her aversion to the respondent could be made known to him. Later in the evening when the respondent returned to his house on getting, the information from P. W. 2 Sridharan about the alleged offence, he along with his elder brother Thirunavaukkarasu examined as P. W. 4, proceeded to Villiyanur to the residence of the petitioners and questioned them about the conduct of their sister examined as P. W. 3. It is the prosecution case that the petitioners stated that the respondent's wife (P. W. 3) will thereafter live with the first accused Thiruchelvam. On these allegations, the respondent filed a complaint before the Chidambaram Town Police Station on 29. 12. 1986 but was directed to prefer a private complaint. Accordingly, on 7. 1. 1987 the respondent filed the private complaint before the Judicial First Class Magistrate, chidambaram, who after recording the sworn statement of the respondent, examined Sridharan, the house owner, and took the case on file for offences under Sec. 497 and Sec. 497 read with Sec. 109, Indian Penal Code. Subsequently, after issue of process to the petitioners and Thiruchelvam, the trial was proceeded with. The respondent was examined as P. W. 1 and Sridharan was examined as P. W. 2, Saraswathi was examined as P. W. 3 and the elder brother of the respondent Thirunavukkarasu was examined as P. W. 4. P. W. 3, the wife of the respondent, has testified that she and her husband the respondent were initially happy with the marital life, and later, the respondent took a second wife and started neglecting her and never visited her for over two or three years. It is also her case that the respondent had developed an aversion towards her and was proposing to take a second wife. She denied the charge of adultery with Al. She had also deposed that she was inimically disposed towards the petitioners in view of some dispute regarding presentation of jewels by the petitioners at or about the time of her marriage.
(2.) THE charge that has been framed against the petitioners is for an offence under Sec. 497, Indian Penal Code read with sec. 109, Indian Penal Code. THE charge reads that on 28. 12. 1986 at or about 2 p. M. , when Al Thiruchelvam had sexual intercourse with P. W. 3, the wife of the respondent, the petitioners abetted the commission of the said offence. The facts stated above very clearly indicate that the petitioners had no manner of connection whatsoever with the crime in question. The allegations made by the prosecution in the complaint as well as the evidence in Court clearly postulates that the petitioners were neither at the scene nor had done any act to facilitate the crime being committed by Al thiruchelvam. To constitute abetment a person must instigate any other person to do a particular thing or he must engage himself with one or more persons in a conspiracy of doing that thing or he must intentionally aid by any act or illegally omit the doing of that thing. The definition of abetment under sec. 107 of the Indian Penal Code portrays that to constitute abetment , the abettor must be shown to have intentionally aided the commission of the crime. On the facts of this case, the first and second clauses of Sec. 107, indian Penal Code have to be necessarily excluded. Concerning the third clause of Sec. 107, Indian Penal Code, as stated earlier, there is no material to indicate that the petitioners intentionally aided the commission of the offence. All that the evidence let by the prosecution will indicate will be that after the event the respondent went and questioned the petitioners who stated that their sister P. W. 3 would only live thereafter with Al Thiruchelvam. The evidence, even if true, cannot constitute abetment to connect the petitioners with the crime in question. Intentional aiding and active complicity is the gist of the offence of abetment. It is not even though that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Even such material is not available on the facts of this case. On the materials placed before the Court, I am of the firm view that a charge under Sec. 497 read with Sec. 109, Indian Penal Code cannot be framed against the petitioners. The charge has to be necessarily quashed and it is accordingly quashed. The proceedings against the petitioners in C. C. No. 24 of 1987 on the file of the Judicial First Class Magistrate, chidambaram will stand quashed.;