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2009 DIGILAW 2978 (MAD)

Natarajan v. State by Inspector of Police

2009-08-05

G.RAJASURIA

body2009
Judgment 1. Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgment dated 25. 2006 passed by the Additional District Sessions Court/Fast Track Court, Namakkal, in C.A.No.118 of 2005 confirming the order dated 211. 2005 passed by the Judicial Magistrate, Rasipuram, in C.C.No.447 of 2003. Animadverting upon the judgment dated 25. 2006 passed by the Additional District Sessions Court/Fast Track Court, Namakkal, in C.A.No.118 of 2005 confirming the order dated 211. 2005 passed by the Judicial Magistrate, Rasipuram, in C.C.No.447 of 2003, this criminal revision case is focused. 2. Compendiously and precisely, the facts absolutely necessary and germane for the disposal of these criminal revision cases would run thus: (a) The police laid the police report in terms of Section 173 of Cr.P.C. as against both the accused. Inasmuch as the accused pleaded not guilty, the trial was conducted. (b) During trial, on the side of the prosecution, P.Ws.1 to 11 were examined and Exs.P1 to P4 were marked. On the accuseds side no oral or documentary evidence was adduced. (c) Ultimately, the trial Court recorded the convictions and imposed the sentences as under:- Table (f) Challenging and impugning the order of the lower Court, the appeal in C.A.No.118 of 2005 was filed before the Additional District Sessions Judge, Namakkal. The appellate Court confirmed the conviction recorded by the lower Court in respect of A2-Nallammal, but set aside the sentence of imprisonment and enhanced the fine amount, whereas, it confirmed the conviction and the sentence imposed as against A1-Natarajan. 3. Being dissatisfied and disconcerted with the judgments of both the Courts below, A1-Natarajan preferred this revision on various grounds, the pith and marrow of them would run thus: Both the Courts below have not considered the delay in registering the FIR. The charges are vague, but even then the Courts below have attached no importance to it. Based on the interested testimony of P.Ws.1 to 5, the judgment was rendered. In the absence of independent evidence, the accused should have been acquitted. 4. The point for consideration is as to whether there is any perversity or non-application of mind in recording the conviction under Section 498-A and Section 4 of Dowry Prohibition Act as against the revision petitioner herein. 5. Heard both sides. 6. In the absence of independent evidence, the accused should have been acquitted. 4. The point for consideration is as to whether there is any perversity or non-application of mind in recording the conviction under Section 498-A and Section 4 of Dowry Prohibition Act as against the revision petitioner herein. 5. Heard both sides. 6. The learned counsel for the revision petitioner, by inviting the attention of this Court to the depositions of P.Ws.1 to 5, the copies of which he also placed before this Court, would develop his argument that based on the interested testimony of those witnesses, both the Courts below held the accused No.1 guilty, even though he was not at fault and the independent witnesses cited on the prosecution side were turned out to be hostile witnesses. 7. According to the learned counsel for the revision petitioner, throwing to winds the preponderance of probabilities and also general psyche of an individual, the Courts below simply jumped to the conclusion as though the accused went on demanding dowry for more than a decade and accordingly, the learned counsel prayed for setting aside the conviction and the sentences imposed as against A1. 8. Heard the learned Government Advocate. 9. A plain poring over and perusal of the order of the lower Court would reveal and exemplify that the trial Court itself acquitted the accused of the offence under Sections 294(b), 352 and 406 IPC. While acquitting so, in paragraph 13 of its judgment, it clearly gave a finding that there was no evidence to point out and indicate that A1 misappropriated 10 sovereigns of gold jewels belonging to P.W.1 and also a sum of Rs.20,000/-. However, the trial Court as well as the appellate Court felt that offence under Section 4 of the Dowry Prohibition Act was made out. 10. The complaint itself was lodged 10 years after the marriage. It is unassailably and incontrovertibly evident axiomatically that the marriage between A1 and P.W.1 took place in the year 1993, whereas the complaint was lodged on 110. 2003, so to say, during the year 2003. No doubt, P.W.1 and other witnesses would try to detail and delineate that incessantly and continuously, interminably and unremittingly A1 along with his mother was demanding the alleged remaining 10 sovereigns of gold jewels, which, on the brides side promised to give, but failed to perform. 2003, so to say, during the year 2003. No doubt, P.W.1 and other witnesses would try to detail and delineate that incessantly and continuously, interminably and unremittingly A1 along with his mother was demanding the alleged remaining 10 sovereigns of gold jewels, which, on the brides side promised to give, but failed to perform. The fact remains that the couple i.e. A1 and P.W.1 gave birth to two children one female and another male. The female child was examined as P.W.5 in this case. 11. No doubt, the prosecution has to prove the case beyond all reasonable doubts and Section 8-A of the Dowry Prohibition Act contemplates a special provision regarding burden of proof. Even then, the prosecution case should satisfy the basic requirement of the preponderance of probabilities. 12. It is also the finding of the trial Court that the parents of P.W.1 were not that much of wealthy and in such a case, in the absence of independent evidence, it is not proper to arrive at the conclusion that A1 was continuously making dowry demand. 13. At this juncture I would like to refer to the definition of dowry as contemplated under Section 2 of the Dowry Prohibition Act, and it is extracted hereunder for ready reference: "dowry" means any property or valuable security given or agreed to be given either directly or indirectly" 14. As such, the alleged demand should be in connection with the marriage. Here 10 years after the marriage, complaint itself was lodged. Even if there were some demands for money by the husband to the wife, so to compel her to get money from her parents, nevertheless it cannot straight away be described or labelled as dowry demand. Not to put too fine a point on it, all demands for money by a husband to his wife or wifes parents would not amount to dowry demand, unless such demand was relating to the marriage. 15. In this connection, the learned counsel for the revision petitioner also cited the decision of this Court reported in 2004 Crl.L.J.2731 - Shanmughavelu V. State, an excerpt from it would run thus: "12. In this case, demand of dowry even if assumed to be true neither relates to the one nor agreed to be given at or before or after the marriage. Such demand of dowry after three years of happy life certainly not relating to the marriage. In this case, demand of dowry even if assumed to be true neither relates to the one nor agreed to be given at or before or after the marriage. Such demand of dowry after three years of happy life certainly not relating to the marriage. Definite case of P.W.1 is that even at the time of marriage she was given Seer Varisai of Rs.5,000/-, 1 ½ acres of land and jewels apart from household utensils. Accused was satisfied with them. After marriage both P.W.1 and accused were living happily for three years. Any demand thereafter cannot be said to be in connection with the marriage. The learned Chief Judicial Magistrate has not tested the evidence of P.W.1 on the essential ingredients of Section 4. Since the demand of dowry is not in connection with the marriage, conviction under Section 4 cannot be sustained. This is all the moreso when the demand of dowry itself is highly doubtful." 16. As such, I am of the considered opinion that even though the witnesses on the prosecution side, so to say, P.Ws.1 to 4, might say about the dowry demand, I am of the considered opinion that the ingredients of dowry were not established beyond reasonable doubts. However, the evidence of P.Ws.1 to 5 clearly demonstrate and disclose that P.W.1 was subjected to torture. The evidence o P.W.1 coupled with her daughters evidence-P.W.5 would clearly exemplify and evince that A1 was in the habit of indulging in wife battering and he was not in the habit of providing the necessaries of life to them. P.W.5-being the daughter of A1 and P.W.1, gave a picturesque description as to how A1 was torturing P.W.1 by beating her etc. Hence, I am having no hesitation in holding that both the Courts below were right in recording the conviction under Section 498-A IPC by invoking sub-clause (a) of explanation appended to it, which contemplates general cruelty meted out to a lady by a husband, even though under sub-clause (b), only dowry harassment is contemplated. 17. Here there is overwhelming evidence to indicate and portray that A1 indulged in wife battering and also harassed and tortured her both physically and mentally and thereby A1 pushed himself within the ambit of Section 498-A IPC, by virtue of sub-clause (a) of explanation appended to it. 17. Here there is overwhelming evidence to indicate and portray that A1 indulged in wife battering and also harassed and tortured her both physically and mentally and thereby A1 pushed himself within the ambit of Section 498-A IPC, by virtue of sub-clause (a) of explanation appended to it. Hence, I am of the considered opinion that the conviction recorded as against A1 for dowry harassment should be set aside and the conviction recorded under Section 498-A should be confirmed and upheld. 18. Regarding the sentence aspect is concerned, the learned counsel for the revision petitioner would implore and entreat, pray and appeal, request and supplicate that already the accused A1 underwent detention for 25 days during investigation and after the confirmation of the sentence by the Sessions Court, he was in jail for 15 days and as such, according to him the accused underwent incarceration for nearly 40 days. However, he would come forward with the supine submission that compensation might be awarded in favour of the victim instead of sending the accused once again to jail. 19. Heard the learned Government Advocate also in this regard. 20. I am of the considered opinion that more than one month A1 underwent incarceration in connection with this case and that would be sufficient punishment for the offence under Section 498-A IPC along with a direction to be imposed on him to pay a compensation of Rs.20,000/- (twenty thousand) to P.W.1, after setting aside the fine part of the sentence and also modifying the imprisonment part of the sentence by reducing it from one year to one month simple imprisonment. 21. Accordingly, this revision is partly allowed acquitting A1 of the offence under Section 4 of the Dowry Prohibition Act and confirming the conviction recorded under Section 498-A of IPC and the sentence is modified as under:- The accused is sentenced to one month simple imprisonment and he is directed to pay a compensation of Rs.20,000/- (Twenty thousand) under Section 357(3) of Cr.P.C. to the respondent. The compensation shall be deposited before the Magistrate concerned within four weeks from the date of receipt of copy of this order. If there is any default in depositing such compensation, then this order will not enure to the benefit of A1 and the sentence imposed as such by the appellate Court shall stand.