Prakash, Devarajulu and Vasantha vs State

C.S. Karnan, J.—The short facts of the prosecution case are as follows:-

The defacto complainant, viz., Mrs. Sujatha had lodged a complaint before the Inspectress of All Women Wing Police Station, Tiruvallur, stating

that the first accused viz., Prakash had married her on 29.08.2003 at Tiruvallur. From the date of marriage her husband had been demanding

Sujatha''s share property from her father, but the same had been refused by her father. Hence her husband and his parents had begun to torture

her. Due to the intolerant conditions, the defacto complainant left the matrimonial home on 13.03.2004, after leaving her ornaments at the

matrimonial home. Further, all the accused had threatened the defacto complainant that they would pour kerosene on her and light it. The said

complaint was registered as Crime No. 1 of 2005, on the file of the respondent herein, for the offence u/s 498(A), 406, 506(2) of I.P.C. and read

with Section 4 of Dowry Prohibition Act. The respondent herein had conducted an investigation and filed a charge sheet before the Judicial

Magistrate-II, Tiruvallur and the same has been arrayed as C.C. No. 340 of 2005.

In order to prove the prosecution case, seven witnesses were listed and four documents were marked. viz., F.I.R., marriage invitation, list of

ornaments and house hold articles belonging to her and which was left at the matrimonial home and a copy of the complaint. On the side of the

accused, four witnesses were examined and no document was marked.

On questioning, all the accused had pleaded not guilty and hence the prosecution case had been proceeded with.

P.W.1, Sujatha had adduced evidence that she is living at Manavala Nagar in Tiruvallur. She further adduced evidence that she had married the

first accused on 29.08.2003 and at the time of marriage, her parents provided 50 sovereigns of gold jewellery and Rs. 2,00,000/- as cash, besides

giving Rs. 20,000/- towards dress materials and 13 sovereigns of gold ornaments to her husband and all household articles. Immediately after the

marriage both the spouses had led their marital life at the matrimonial home. During that period, her husband asked her to get her share of the

property from her father and threatened that if she did not do so, she could remain in the house of her father and not to come to the matrimonial

home. Further, her husband tortured her in the privacy of their home. P.W.1 further stated that she was forced to leave the matrimonial home and

go to her mother''s place. On 02.09.2004, she gave birth to a female child. On 14.02.2005, her mother-in-law and her husband came to her

mother''s house and instructed her to bring her share of the property within one week to the matrimonial home, failing which, she could continue to

stay at her mother''s place itself and also threatened her that they would take all steps to spoil her reputation. Hence, her father had levelled the

said complaint on behalf of her. P.W.1 further stated that her husband and his parents told her that the child was not born through her husband (A-

1).

P.W.2, Rani had adduced evidence that Sujatha is her eldest daughter and the marriage was solemnized on 29.08.2003 between A-1 and her

daughter. The evidence of P.W.2 was in consonance with the evidence of P.W.1.

P.W.3, Krishnan had adduced evidence that he is residing at Arakkonam and he knows about Sujatha''s family and also knows that the

marriage was solemnized between A-1 and Sujatha in the year 2003. P.W.3 further stated in his evidence that on one occasion he had visited

Sujatha''s matrimonial home and he observed that her mother-in-law was attending to all household work and that Sujatha was not permitted to do

any household work. P.W.3 further adduced evidence that he was informed by P.W.1 that her in-laws and her husband had tortured her and

asked her to get her share of the property from her father and that even after her father had given his consent to share his property among the three

members, all the accused had continuously tortured her to get her share of property. P.W.3 further adduced evidence that P.W.1 had informed

him that all the accused had told her that the child was not born through her husband.

P.W.4, Munusamy had adduced evidence that he is residing at Red hills and that the father of P.W.1 is his cousin brother and he knows all the

accused. On 29.08.2003, the marriage was solemnized between them and at the time of marriage, P.W.1''s father gave huge amounts and lot of

gold jewellery. He was informed that the first accused had demanded the share of the property of P.W.1. P.W.1''s father had also agreed to share

the property with the other two children. P.W.1 was tortured by the accused during her pregnancy period too. P.W.4 further adduced evidence on

the same line of P.W.1.

P.W.5, one Sekar had also spoken on the same line as per the evidence of P.W.1.

P.W.6, Chandiran, father of P.W.1 had adduced evidence that he had provided 50 sovereigns of gold jewellery and Rs. 2,00,000/- besides Rs.

20,000/- as cash for dress at the time of marriage. Immediately after the marriage, his daughter lived at the matrimonial home. His son-in-law

demanded a share of property of his daughter and he had also agreed to share the property. He further stated that his son-in-law tortured his

daughter in the privacy of the matrimonial home. He had also spoken on similar lines of P.W.1.

P.W.7, Sarala Devi, the Inspectress of Police had adduced evidence that on 15.02.2005, P.W.1 lodged a complaint and she had registered the

case in Crime No. 1 of 2005, for the offence u/s 498(A), 406, 506(2) of I.P.C. and read with Section 4 of Dowry Prohibition Act. She also

recorded statements from four witnesses and the accused were arrested on 16.02.2005 and produced before the Judicial Magistrate. She also

filed a charge sheet in this regard.

On the side of the accused, it was contended that they had not received any amount from the defacto complainant''s father.

On recording the evidence of both sides and on perusing the exhibits marked by the prosecution and on hearing the arguments from both side

counsels, the learned Magistrate had observed that the second accused had received Rs. 2,00,000/- as dowry at the time of marriage. Not being

satisfied with the said amount, the accused had tortured P.W.1 for further dowry. Further, the prosecution had proved the case beyond doubt

except the offence u/s 506(2) of I.P.C. Hence, all the accused had been acquitted from that offence. However, the learned Magistrate held all the

accused guilty of offence u/s 498(A), 406, read with Section 4 of Dowry Prohibition Act. Hence, the learned Magistrate sentenced them to

undergo two years rigorous imprisonment and a fine of Rs. 1,000/- was imposed on each of the accused; in default they have to undergo a further

period of six months simple imprisonment for the offence u/s 498A of I.P.C. All the accused were also held guilty of offence u/s 406 of IPC and

they were sentenced to undergo six months rigorous imprisonment and they were also held guilty of the offence u/s 4 of Dowry Prohibition Act and

sentenced to undergo one year rigorous imprisonment and a fine of Rs. 1,000/- was imposed on each of them; in default they have to undergo four

months simple imprisonment.

Against the conviction and sentence passed by the learned Judicial Magistrate-II, Tiruvallur in C.C. No. 340 of 2005, dated 06.02.2008, all

the accused had filed an appeal in C.A. No. 40 of 2005, on the file of Additional District Sessions Judge, Fast Track Court-III, Tiruvallur. The

learned judge after hearing the arguments of the learned counsels on both sides and on perusing the trial Court judgment, dismissed the appeal and

confirmed the trial Court''s conviction and sentence.

Against the dismissal of the said appeal, the above revision has been filed.

The learned counsel for the revision petitioner has contended that without proper application of mind and appreciation of the facts, a conviction

order has been passed, which is an erroneous view of the Courts below. It was contended that the Courts below ought to have seen that having

acquitted the petitioners herein for the offence u/s 506(2) of IPC, by disbelieving the evidence of prosecution witnesses, erred in convicting them

for the other alleged offences on the same set of allegations as against them. It was contended that the Courts below failed to note that the entire

prosecution case only on oral evidence of the family of P.W.1 and no documentary proof nor oral evidence of independent witnesses have been

produced and as such that evidence should have been carefully scrutinized before convicting the petitioners herein for the alleged offences. P.W.3,

P.W.4, P.W.5 are not eyewitness, but are created witnesses. The date, time and place were not mentioned in the prosecution case regarding

torture of P.W.1 and there is no material evidence regarding torture and demand of dowry. Actually, P.W.1''s issue regarding grievance about the

allegation that her in-laws beside her husband''s that the female child was not born through A-1, would come under paternity issue. The further

allegation against the accused is that they had demanded P.W.1 to get her share of the property from her father is also not covered under the

demand for dowry. There is absolutely no documentary evidence or eyewitness for torturing of P.W.1 in order to receive dowry, but it is only a

hypothetical theory. Therefore, the prosecution case is not sustainable under law. However, A-2 had admitted that he had received a sum of Rs.

2,00,000/- from the father of P.W.1 at the time of marriage. The amount transaction took place after due consent of both parties and as such, the

amount could not be treated as dowry.

The learned counsel further contended that P.W.1 had stated that 13 sovereigns of gold was provided to A-1, but her father and mother had

not stated anything regarding 13 sovereigns of gold. A-1 being a dutiful husband and for the welfare of their offspring''s has the right to ask P.W.1

to get her share of property. The alleged demand of A-1 regarding share of property is also not proved by the prosecution by way of documentary

evidence showing disclosure of the items and locations and value of the properties. Therefore, on the vague statement of P.W.1, the entire

prosecution case had been proceeded with and the innocent accused had been punished. The learned counsel further stated that A-2 and A-3 are

senior citizens. P.W.3, P.W.4, P.W.5 have stated about the marriage and they have been told by P.W.1 regarding share of property and paternity

of the child.

The learned counsel for the state vehemently argued that A-2 had openly admitted that he had received a sum of Rs. 2,00,000/- from the

father of P.W.1 at the time of marriage and that this amount was given as dowry for the marriage of P.W.1. All the accused have no rights to insist

and torture P.W.1 to get her share of property from her biological parents. The demand to ask or not to ask her share of the property is purely on

the will and pleasure of P.W.1. All the accused have jointly stated that the female child was not born through A-1 which is also causing mental and

social torture. All the accused are continuously torturing P.W.1 for demanding of dowry from her parents while she was staying at the matrimonial

home. Not being able to tolerate the continued torture of the accused, she left the matrimonial home and has taken shelter with her parents. Being a

dutiful wife P.W.1 bore all the insults meted out by the accused at the matrimonial house. The prosecution case has been proceeded with and

proved beyond all doubt only after the Inspectress of Police had collected statements from the independent witnesses, viz., P.W.3, P.W.4 and

P.W.5. The learned counsel for the State further argued that P.W.1 had gone to her parents house unable to withstand the continued torture and

hence, had left her gold ornaments and house hold articles at the matrimonial home and these items which were left behind had also been listed by

her. Hence, the learned counsel entreats the Court to dismiss the above revision and confirm the concurrent findings of the Courts below.

On considering the order of the conviction and sentence and perusing the listed documents and on hearing the arguments of the learned

counsels on either side and observing that as per the language of Sections 498(A), 406 of I.P.C., it has been stated that:-

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.

Punishment for criminal breach of trust-Whoever commits criminal breach of trust shall be punished with imprisonment of either description

for a term which may extend to three years or with fine, or with both.

This Court''s view is that there is no material evidence regarding torture for demanding dowry. Further, the prosecution case has not mentioned

the date, time and place regarding the torture and what kind of torture had taken place. The allegation regarding parentage of the child is not

covered under the demand for dowry. The independent witnesses P.W.3, P.W.4, P.W.5 have not clearly stated any crystal clear evidence

regarding torture for dowry demand.

On considering the facts and circumstances of the case and the arguments advanced by the learned counsels on either side and on perusing

judgments of the Courts below and this Court''s view mentioned above, the prosecution has not proved their case beyond doubt. Hence, this

Court finds it necessary to interfere in the conviction and sentence imposed on the accused by the Courts below. In the result, the above revision is

allowed. Consequently, the conviction and sentence passed in C.A. No. 40 of 2008, on the file of the Additional District Sessions Judge, Fast

Track Court-III, Tiruvallur, dated 12.07.2010, confirming the conviction and sentence passed in C.C. No. 340 of 2005, on the file of Judicial

Magistrate-II, Tiruvallur, dated 06.02.2008 is set-aside and the accused A-1 to A-3 are set at liberty and the fine amount to be refunded to the

accused. Accordingly ordered.