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2009 DIGILAW 357 (AP)

Bolla Sivangi Reddy v. State of Andhra Pradesh

2009-06-05

B.CHANDRA KUMAR

body2009
JUDGMENT (1) This revision case is directed against the judgment dated 11. 2. 2004, passed in Criminal Appeal No. 475 of 2001 by the VI Additional Sessions Judge (Fast track Court), Guntur, where under and whereby the conviction and sentence imposed against the petitioner for the offence punishable under Section 498-A IPC was confirmed, however, the petitioner was acquitted for the offence punishable under Section 307 IPC. (2) For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the trial Court. The brief facts of the case are as follows: The accused is the husband of pw1. They were married in the year 1985 and set up their family at Veerlapalem, guntur District. The case of PW1 is that they lived happily till they were blessed with a son and subsequently the accused started ill-treating her and assaulted her physically. At the time of their marriage, her parents gave Rs. 35,000/- to the accused towards dowry. However, the accused was demanding to secure more money from her parents. Due to the continuous harassment, she was compelled to lodge a police complaint in the year 1987, based on which a case in Crime No. 36 of 1987, under section 498-A IPC, was registered and the same was numbered as CC No. 129 of 1987. However, subsequently, the parties compromised the matter and consequently pw1 had withdrawn her complaint. Then pw1 joined the accused and they were blessed with female child in the year 1992. The further case of PW1 is that again the accused started harassing her demanding more dowry from her parents and she was compelled to leave the house of the accused and started residing with her parents. There was exchange of legal notices. However, again on the intervention of the elders, the matter was compromised and PW1 joined the accused. It is also her case that the accused was addicted to vices and again the accused started harassing her. Her further case is that on 18. 8. 2000, when the accused started abusing her, she went into the cattle shed and the accused came behind her holding a crow bar and tried to stab her, however, she escaped. On the same day evening at about 5. Her further case is that on 18. 8. 2000, when the accused started abusing her, she went into the cattle shed and the accused came behind her holding a crow bar and tried to stab her, however, she escaped. On the same day evening at about 5. 00 p. m. , the accused poured kerosene on her and tried to lit match stick, then she ran into the house and bolted the door from inside and remained in the house throughout the night without opening the door. The accused did not return to the house during night time and on the next day morning again the accused assaulted her and driven her out from the house. Then she returned to her parents house and gave a report ex. P1 to the police on 20. 8. 2000, based on which the police registered the case in crime No. 111 of 2000 under Section 498-A IPC. (3) The learned Magistrate had taken the cognizance for the offences punishable under Sections 498-A and 307 IPC, and after furnishing the copies of documents to the accused, he committed the case to the Court of Session. Charges under sections 498-A and 307 of the Indian Penal code were framed against the accused and the accused pleaded not guilty and claimed to be tried. (4) On behalf of the prosecution, besides PW1, PWs. 2 to 4 were examined and Exs. P1 to P4 were marked during trial. The accused denied all the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal procedure and no defence evidence was produced on his behalf. The learned Additional Assistant sessions Judge, FAC of Principal Assistant sessions Judge, Tenali, by judgment dated 24. 9. 2001, in S. C. No. 1043 of 2000, convicted the accused for the offence punishable under Section 498-A IPC and sentenced to suffer Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 500/-in default to suffer simple imprisonment for one more month. The accused was also convicted for the offence punishable under Section 307 IPC and sentenced to suffer Rigorous Imprisonment for a period of five years and also to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for two more months. 500/-in default to suffer simple imprisonment for one more month. The accused was also convicted for the offence punishable under Section 307 IPC and sentenced to suffer Rigorous Imprisonment for a period of five years and also to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for two more months. (5) As indicated above, the appellate court found the accused guilty for the offence punishable under Section 498-A IPC and confirmed the sentence imposed by the trial Court, but however, acquitted him for the offence punishable under Section 307 IPC. (6) Sri Bal Reddy, learned Senior counsel appearing for the petitioner, submitted that when the appellate Court has not believed the version of PW1 for the offence punishable under Section 307 ipc on some analogy the accused should have been given benefit for the offence punishable under Section' 498-A IPC. He has submitted that unless the harassment is for dowry, the ingredients of Section 498-A ipc are not attracted and PW1 did not specify as to why she was harassed and the allegations of PW1 are vague. He further submitted that the previous history shows that PW1 is in the habit of filing false cases against the petitioner and the courts below have failed to appreciate the evidence on proper perspective. He further submitted that the Civil Court granted divorce to the parties and that there is delay of two days in giving report to the police. Learned Public Prosecutor, on the other hand, submitted that though the accused continuously harassed PW1, on the advise of elders and in the interest of family, she had compromised the matter with the accused on two occasions and joined the company of the accused, however, there was no change in the attitude of the accused and that the accused had continuously harassed PW1 and since the harassment is demanding dowry the ingredients of section 498-A IPC have been attracted and the evidence on record shows that the dispute is with regard to land given by the father of PW1 and this clearly shows that the acts committed by the accused come within the ambit of Section 498-A IPC. (7) Since the appellate Court has found the accused not guilty for the offence punishable under Section 307 IPC, the discussion has to be confined to Section 498-A ipc, for which the accused was ultimately found guilty and convicted. (7) Since the appellate Court has found the accused not guilty for the offence punishable under Section 307 IPC, the discussion has to be confined to Section 498-A ipc, for which the accused was ultimately found guilty and convicted. (8) Section 498-A IPC is 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 purposes of this section "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman, where such harassment is with view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In view of the above wordings of section 498-A IPC, we have to see whether there was harassment of PW1 with a view to coerce her to meet any unlawful demand for the property by the accused. As seen from the evidence, it appears that the father of PW1, who is examined as PW2, has given Acs. 4-00 of land to PW1 at the time of marriage. According to PW1, her parents gave Rs. 35,000/- to the accused at the time of marriage. However, she has admitted that her parents handed over Rs. 35,000/- to her father-in-law towards her pasupukunkuma and for management of the same. It is also her specific case that the accused was demanding her to secure more money from her parents. It is also her case that her father gifted Acs. 4-00 of land to her at the time of her marriage and a gift deed was also executed in her favour, but it was misplaced. The said land was disposed of in the year 1995 and according to PW1 the sale proceeds were handed over to the accused. It is also her case that her father gifted Acs. 4-00 of land to her at the time of her marriage and a gift deed was also executed in her favour, but it was misplaced. The said land was disposed of in the year 1995 and according to PW1 the sale proceeds were handed over to the accused. Though PW1 admitted that this fact was not stated in her statement before the police, but a reading of the entire evidence shows that the issue of selling acs. 4-00 of land is an admitted fact. The stand of the accused, as seen from the suggestions given to PW1, is that PW1 was demanding separate residence and that she was forcing the accused to get land from his father and his senior paternal uncle. PW2 also deposed that at the time of marriage he gave Rs. 35,000/- to PW1 towards Pasupukunkuma and that the accused was harassing PW1. He also deposed that he gifted Acs. 4-00 of land to pw1 towards Pasupukunkuma and that the said land was sold in the year 1985 or 1986 and that the sale proceeds were not deposited in the name of PW1 till 1998. He says that he gave that amount to PW1 subsequently. This appears to be one of the reasons for the disputes between the parties. However, a reading of the evidence of PWs. 1 and 2 gives an impression that there were disputes between the accused and PW1 with regard to land gifted to PW1 by her father at the time of marriage and when the land was sold subsequently, but the sale proceeds were not given to PW1 immediately after the sale of such land. PW3 is the resident of the same village and he knows the accused and PWs. 1 and 2 and he speaks about the disputes between the parties and with regard to compromise effected between them and with regard to information furnished by PW1 about the attack made on her on 18. 8. 2000. PW4 is the Investigating Officer in this case. Certain omissions have been brought on record in the evidence of PW4 that PW1 did not state before him with regard to dowry of rs. 35,000/- paid to the accused at the time of her marriage. (9) The evidence of PW1 appears to be corroborated by the evidence of PW2 and contents of Ex. Certain omissions have been brought on record in the evidence of PW4 that PW1 did not state before him with regard to dowry of rs. 35,000/- paid to the accused at the time of her marriage. (9) The evidence of PW1 appears to be corroborated by the evidence of PW2 and contents of Ex. P1 with regard to harassment of the accused demanding her to secure money from her parents. Therefore, the evidence of PW1 proves that the accused has harassed her and forced her to secure money from her parents. It is settled law that a part of the evidence of a witness can be accepted while rejecting other part of the evidence. Therefore, even if the version of PW1 is disbelieved in respect of offence under Section 307 IPC, it does not come in the way of believing her version in respect of offence under Section 498-A IPC. The delay of two days in giving complaint etc. , are minor issues and need not be given much weight. The previous litigations and subsequent divorce between the parties does not make the version of pw1 untrustworthy. In view of the same, the ingredients of Section 498-A IPC have been established by the prosecution and the judgments of the Courts below, as far as the appreciation of evidence on this aspect, appears to be on correct perspective. Therefore, the conviction of the accused for the offence punishable under Section 498-A ipc stands confirmed. (10) THOUGH while dealing with revision petition, there is no need to re-appreciate the evidence, but in the interest of justice, i have gone through the entire evidence once again and satisfied that the Courts below have correctly come to the conclusion that the charge under Section 498-A IPC stands proved against the accused. Learned Counsel for the petitioner/accused submitted that the petitioner's son is studying B. Tech III year and his daughter has completed Intermediate and that he is paying maintenance of Rs. 3,000/- per month to PW1 and the parties are residing separately, and therefore, no purpose would be served by confirming the sentence of imprisonment as imposed by the Courts below and considering the facts and circumstances of the case the sentence of imprisonment may be modified and that the accused is prepared to pay compensation to PW1. 3,000/- per month to PW1 and the parties are residing separately, and therefore, no purpose would be served by confirming the sentence of imprisonment as imposed by the Courts below and considering the facts and circumstances of the case the sentence of imprisonment may be modified and that the accused is prepared to pay compensation to PW1. (11) The question of sentence is always a difficult and in many cases a delicate matter for the Court. In many cases, the victim is forgotten. What is the effect of sentence, imposed against the accused, both on the accused as well as on the victim and those who are depending on them has to be taken into consideration. When the earning member of the family is convicted and sentenced to imprisonment, the family may loose the source of income. The family of the accused may consist of the wife, minor children and old aged parents. Even when an accused is sentenced to imprisonment, it may be in the interest of the society or may act as deterrent to the others who are intending to commit similar offences and may be useful for protection of the public and public order, but in many cases it may not be helpful in any manner to the victim. We have hear4 that there is a practice in Tribal community i. e. , when a person is murdered, the offender who committed the murder will be called to a panchayat and the panchayat elders take a decision directing such offender to work in the family of the murdered" person and all his earnings would go to such family. Thus, the tribal community seems to have taken into consideration the financial crisis that would be undergone by the members of the family of the murdered person. (12) There are two theories of punishment. One is punitive and the other is reformative. The main philosophy of reformative theory is to give an opportunity to the accused to join the main stream of the society and to bring a change in him so as to make him a useful member of the society. Whether the punitive theory has to be followed or reformative theory has to be followed must depend upon the facts and circumstances of each case. Whether the punitive theory has to be followed or reformative theory has to be followed must depend upon the facts and circumstances of each case. The factors such as the gravity of the offence, its impact on the society and the public interest have to be taken into consideration. The offences against the society such as narcotic drug cases, food adulteration cases, smuggling and white-collar offences may require suitable punishment. Similarly, the offences against human body i. e. , murder, rape and kidnapping and the offences against women and children warrant adequate punishment, but where in a case for the first time an agriculturist or village artisan is involved in petty quarrels and trespass cases (Sections 323, 324, 447, 448, 504 and 506 ipc) the Courts should be lenient. The circumstances under which the offence was committed should be taken into consideration. There are no hard and fast rules laid down. In fixing punishment, the Judge has to take into consideration the facts and circumstances of each case and use his discretion in a judicious manner. The nature of offence, the circumstances in which it was committed, the provocation, if any, the antecedents of the offender, and his age and character must be taken into consideration. The sentence in each case should be proportionate to the nature and gravity of the offence. In Indo-China Steam Navigation co. v. Jasjit Singh, AIR 1964 SC 1140 , the Supreme Court observed as follows: ". . . . . . . . . . . . . . . . It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals, because the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the administration of criminal law. But it must be remembered that ordinary offences with which the normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who, in many cases, deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure. . . . . . . . . . . . . . . . . . . . . . . " (13) In Karamjit Singh v. State (Delhi admn.), AIR 2000 SC 3467 , the Supreme court observed thus: ' "punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realize his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case the Court has to weight the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is what is needed in such a case, a balance between the interest of the individual and the concern of the society weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law. " (14) As observed earlier the victim is always forgotten. What is the effect of convicting the accused upon the victim has to be taken into consideration. In many cases, it may not have any effect on the future life of the victim and the victims will be left without any remedy to the injury or loss caused to them. Then what is to be done? The important questions that arise are whether the society should take care of such victims? and whether the accused can be asked or directed to compensate the victim?. Section 357 Cr. Then what is to be done? The important questions that arise are whether the society should take care of such victims? and whether the accused can be asked or directed to compensate the victim?. Section 357 Cr. P. C, which deals with compensation, is as follows. 357. Order to pay compensation.- (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, and where a person against whom an offence is committed belongs to Scheduled Castes or cheduled Tribes as defined in clauses (24)and (25) of Article 366 of the Constitution of india except when both the accused person and the person against whom an offence is committed belong either to such castes or tribes, the Court shall, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where a person against whom an offence is committed belongs to Scheduled castes or Scheduled Tribes as defined in clauses (24) and (25) of Article 366 of the constitution of India except when both the accused person and the person against whom an offence is committed belong either to such castes or tribes, the Court shall, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. Provided that the Court may not order the accused person to pay by way of compensation any amount, if both the accused person and the person against whom an offence is committed belong either to the Scheduled Castes or the Scheduled tribes (vide amendment by A. P. Act No. 21 of 1993 with effect from 3. 9. 1993). (4) An order under this section may also be made by an Appellate Court or by the High court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. (15) SUB-Section (1) of Section 357 cr. P. C. deals with the imposition of fine and payment of compensation from the amount of fine i. e. , the whole or any part of the fine. Sub-section (3) of Section 357 cr. P. C. deals with the situation where fine does not form part of the sentence imposed by a Court. In such a case, the Court can order the accused to pay compensation to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. Sub-section (3) of Section 357 cr. P. C. deals with the situation where fine does not form part of the sentence imposed by a Court. In such a case, the Court can order the accused to pay compensation to the person who has suffered loss or injury by reason of the act for which the accused person has been sentenced. The basic difference between sub-sections (1)and (3) is that in the former case the imposition of fine is the essential requirement, while in the later, even in the absence of imposition of fine the Court is empowered to direct payment of compensation. Sub-section (4) makes it clear that the appellate court and the High Court may exercise the power while exercising appellate or revisional powers. (16) The above sub-sections make it clear that even in case of sentence, of which fine does not form a part, the Court has been empowered to award compensation to the person, who is suffered loss or injury by reason of the offence. In Hari Kishan v. Sukhbir Singh and others, AIR 1988 SC 2127 , the Supreme court observed thus: "section 357 (3) is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of the accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. " (17) Coming to the facts of the present case, considering the history of the case and prolonged disputes between the parties and the fact that both the children of the parties are studying and that the accused is aged about 50 years, I feel that if the sentence of imprisonment is not modified, the children of the accused, who are upcoming in their life, will be the victims, particularly the daughter, who is to be married in near future, will be an indirect victim due to the quarrels between PW1 and the accused. Therefore, I deem it just and reasonable to modify the sentence. (18) WHILE modifying the sentence, the interest of PW1 and her future needs also should be taken into consideration. She may be getting the support from her parents at the initial stage, but at present it appears that she may not get any help from her parents side. Now, there are none to look after PW1. Of course, it is informed that the accused is paying a sum of Rs. 3,000/-per month towards maintenance to PW1 and that the same is sufficient for her maintenance. As the age advances, PW1 may require medical expenses or any other unforeseen requirements. In the circumstances, i feel that if a reasonable amount is directed to be paid by the accused to PW1, it may meet her future needs and may be some security in her future life. Therefore, it is just and reasonable to award reasonable compensation to her under Section 357 (3) Cr. P. C. At this stage, learned Counsel for the petitioner/accused, after ascertaining from the accused, submitted that the accused with great difficulty may be in a position to pay Rs. Therefore, it is just and reasonable to award reasonable compensation to her under Section 357 (3) Cr. P. C. At this stage, learned Counsel for the petitioner/accused, after ascertaining from the accused, submitted that the accused with great difficulty may be in a position to pay Rs. 1,00,000/-, but however the maintenance amount of Rs. 3,000/- per month being paid to his wife may be taken into consideration and a direction may be given to the lower Court to modify the order of maintenance. (19) As far as the question of maintenance is concerned, the order granting maintenance seems to have been made vide separate proceedings. Moreover, claiming maintenance is the right of the victim and the same cannot be disturbed in these proceedings. It is made clear that the amount of compensation ordered to be paid is not in lieu of maintenance or as lump sum amount towards maintenance. This is in addition to the maintenance amount as compensation for the loss and injury caused to the victim of an offence under section 498-A IPC. (20) In the circumstances, I consider it just and reasonable to direct the accused to pay a sum of Rs. 1,00,000/- towards compensation to the victim i. e. , to his wife. Therefore, instead of confirming the sentence of imprisonment for two years, I feel that if the sentence is modified to the extent of the period of imprisonment already undergone by the accused and further if the accused is directed to pay compensation of Rs. 1,00,000/-to PW1, the same will meet the ends of justice. In the result, the criminal revision case is allowed in part. The conviction of the petitioner/accused for the offence punishable under Section 498-A IPC is confirmed. But, however, the sentence of imprisonment is modified as follows: The petitioner/accused is directed to pay compensation of Rs. 1,00,000/- (Rupees one lakh only) to PW1 within a period of two months from the date of receipt of a copy of this judgment. On payment of such compensation, the sentence of imprisonment imposed against the petitioner/accused for the offence under Section 498-A IPC stands modified to the extent of the period already undergone by him and the fine already imposed by the trial Court, failing which the conviction and sentence imposed by the trial court for the offence under Section 498-A-IPC stands confirmed.