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Rafi Hussain-vs-The State Rep.By The on 1 July, 2009

Madras High Court Rafi Hussain-vs-The State Rep.By The on 1 July, 2009

DATED: 01.07.2009

CORAM

THE HONOURABLE MR. JUSTICE G.RAJASURIA

CRL.RC.No.225 of 2006

and

Crl.M.P.No.1267 of 2006

1. Rafi Hussain

2. Badiunnisa .. Petitioners

vs.

The State rep.by the

Sub Inspector of Police

W-1 All Women Police Station

Thousand Lights

Chennai 600 006. .. Respondent

Criminal Revision filed under Sections 397 and 401 of Cr.P.C., against the judgment dated 18.01.2006 passed by the learned Additional District and Sessions Judge (Fast Track Court No.V), Chennai in Criminal Appeal No.229 of 2005 confirming the conviction and sentence dated 16.05.2005 passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.10123 of 2000. For petitioners : Mr.A.Raghunathan,

Senior Counsel for

Mr.T.N.C.Kaushik

For Respondent : Mr.Hasan Mohammed Jinnah

Additional Public Prosecutor

O R D E R

Animadverting upon the judgment dated 18.01.2006 passed by the learned Additional District and Sessions Judge (Fast Track Court No.V), Chennai in Criminal Appeal No.229 of 2005 confirming the conviction and sentence dated 16.05.2005 passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.10123 of 2000, this criminal revision petition is focused.

2. The whole kit and caboodle of facts, as revealed from the records could succinctly and precisely be set out thus:

(i) The police laid police report in terms of Section 173 of Cr.P.C as against A1 and A2 for the offences under Section 498-A IPC and Section 4 of Dowry Prohibition Act. Inasmuch as the accused pleaded not guilty, trial was conducted. (ii) During trial, on the prosecution side, P.Ws.1 to P.W.10 were examined and Exs.P1 to P4 were marked. On the defence side, Exs.D1 and D2 were marked and no oral evidence was adduced. Ultimately, the trial court recorded the conviction and imposed the following sentences against A1 and A2: ———————————————————————

Offence Sentence Imposed/Fine

———————————————————————

(i) 498-A IPC Simple imprisonment for 2 years and a fine Rs.5,000/- each (in default to undergo 3 months simple imprisonment by each)

(ii) Section 4 of Simple imprisonment for 2 years and a

Dowry Prohibition fine Rs.5,000/- each (in default to

Act undergo 3 months simple imprisonment by each)

———————————————————————

(iii) Being aggrieved by and dissatisfied with the judgment of the trial court, appeal was filed by A1 and A2 for nothing but to be dismissed confirming the judgment of the lower court.

3. Challenging and impugning, the judgments of both the courts below, this revision is filed on various grounds, the warp and woof of them would run thus:

a) Both the courts below presumed as though the accused were guilty and wrongly arrived at the conclusion. Absolutely, there is no iota or shred, shard or miniscule, molecule or dot of evidence to indicate that there had been any demand by A1 and A2 for dowry and that in furtherance of such demand, they harassed PW1. The evidence of PW1 and PW2 do not satisfy the ingredients of Section 498-A of IPC and Section 4 of the Dowry Prohibition Act. In the absence of any corroborative evidence or clinching evidence, the testimony of PW1 should not have been believed for gospel truth by both the courts below. b) The appellate court without analysing the evidence simply confirmed the conviction and the sentence, imposed by the trial court.

4. Heard both sides.

5. The points for consideration are as to:

(i) Whether in the absence of any evidence satisfying the ingredients of Section 498-A of IPC and Section 4 of the Dowry Prohibition Act, both the courts below found the accused guilty?

and

(ii) Whether the judgment of both the courts below were perverse due to non application of law in analysing the evidence placed before it?

6. The learned counsel for the revision petitioners would invite the attention of this court to various portions of the evidence and advance his argument to the effect that the evidence of PW1 is imaginary in nature and she has simply passed allegations as against her husband A1 and the mother-in-law, A2; as against A2, there is no positive allegation even, made by PW1 and in such a case, both the courts below were not justified in mulcting her with criminal liability under Section 498-A and Section 4 of the Dowry Prohibition Act; the brother of PW1 was not examined so as to prove and demonstrate that he sold his cable TV business and raised money and accordingly gave it to PW1 for being paid to her husband; the ordinary family troubles as narrated by PW1 in her deposition should not have been taken as sufficient evidence by both the courts below for convicting the accused for those serious offences.

7. Whereas the learned Additional Public Prosecutor, would submit that absolutely, there is no ground for interfering with the reasoned order passed by both the courts below and he prayed for the dismissal of the revision petition.

8. At the first instance, I would like to consider the case as against A2, the mother-in-law of PW1.

9. I could see considerable force in the submission made by the learned counsel for the revision petitioner/A2 that even in the deposition of PW1, there is no positive assertion on her part that her mother-in-law demanded dowry and in connection with that she harassed her or that she behaved in such a horrendous or horrible manner so as to create an impression in the mind of PW1 that her life would be jeopardised or she would be put to grave injury, etc.

10. At this juncture, I would like to extract here under the following decision of the Hon’ble Apex Court reported in 2002 Cri.L.J. 2814 (Girdhar Shankar Tawade vs. State of Maharashtra).

"2. Before, however, adverting to the factual score, it is to be noticed at this juncture that Section 498-A has been engrafted on to the statute book by way of a separate Chapter in terms of the provisions of Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983). The above amendment stands incorporated by reason of present trend in the society and to meet the requirement of the society, the legislature thought it fit to incorporate a new Chapter being Chapter XXA in the statute book consisting of Section 498-A in the Indian Penal Code. For convenience sake, Section 498-A is set out herein below:- 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 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 purpose 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 harrasment is with a 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.

3. The basis purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: Whereas explanation (a) involves three specific situations, viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment, which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A". A perusal of the aforesaid judgment of the Hon’ble Apex Court along with the penal provision extracted supra, would clearly demonstrate and display, exemplify and convey that to constitute an offence under Section 498-A, the cruelty could be proved either under sub clause (a) or sub clause (b) or both. But, in this case, the nature of the accusation as against the accused made by P.W.1 is such that it neither falls within the ambit of sub clause (a) nor sub clause (b) of the explanation appended to Section 498-A IPC.

12. It has to be seen as to whether as against A2, there is any serious allegation made by PW1. The learned counsel for the revision petitioner would invite the attention of this Court to the following excerpts from her deposition: VERNACULAR (TAMIL) PORTION DELETED

As such, a plain reading of those excerpts would, by no stretch of imagination, would enable this court to view that A2 had the requisite mens rea, so to say, criminal intention to demand dowry from PW1 and that in furtherance of enforcing her illegal demand she conducted herself in such a cruel manner so as to cause grave mental or physical injury to PW1. In this case, the question of PW1 having been driven to commit suicide does not arise at all. Both the courts below in my opinion, have not analysed the evidence on record as per law. They simply took it for granted that A2 also along with A1 indulged in dowry demand and also in causing some harassment to her so as to cause grave mental and physical torture to her.

13. At this juncture, I would like to refer to the following decisions of the Hon’ble Apex Court.

(i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another. An excerpt from it would run thus:

"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. " (ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:

"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." A bare perusal them would reveal that the revisional court is normally not expected to analyse once again the evidence and arrive at a different conclusion from the one arrived at by both the courts below concerning finding of fact. However, the revisional court can interfere, if both the courts below without applying the proper law or perverse in appreciating the evidence decided the lis.

14. My discussion supra would exemplify and evince that as against A2, her pin pricks on the daughter-in-law, was construed as cruelty. No doubt, the conduct of an elderly lady like A2 in passing remarks due to her foul-mouthed attitude as against the lady like PW1, would cause mental torture and inconvenience. Even then, the question arises as to whether such conduct on the part of the A2 is grave enough to attract Section 498-A and Section 4 of Dowry Prohibition Act. The extracted version of PW1 supra would only exemplify and evince that the conduct of A2 was only of an unadjustable mother-in-law and not a cruel mother-in-law as contemplated within the meaning of Section 498-A of IPC and Section 4 of Dowry Prohibition Act. The distinction between an unadjustable mother-in-law and a cruel mother-in-law is not one that of tweedle dum and tweedle dee,but realistic and there is a chasm between the two. I am of the opinion that the conviction recorded and the sentence imposed by the trial court as confirmed by the Appellate Court as against A2 should be set aside, inasmuch as the ratiocination adhered to by both the courts below were perverse and it emanated due to non-applying of the correct provision of law in appreciating the evidence in the facts and circumstances of this case.

15. Relating to the prosecution case as against A1, PW1 in various portions of her depositions clearly and categorically pointed out that he was after money as well and he also demanded dowry. It is axiomatic and obvious that such harassment was made by A1 within 7 years from the date of marriage.

16. In such a case, as per the decision of the Hon’ble Apex Court reported in 2008 (15) Scale 371 (Rajendran and another vs. State Assistant Commissioner of Police, Law and Order), the presumption under Section 113 (B) of the Indian Evidence Act, which is primarily meant for proving the offences under Section 304-B also could be ushered in, in proving the offences under Section 498-A of IPC. Accordingly, if viewed, it could taken that in this matter, the testimony of PW1, the wife and her father PW2 alone would be sufficient. Certain excerpts from the said decision would run thus: "8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498 A. Substantive Section 498 A IPC and presumptive Section 113 B of the Indian Evidence Act, 1872 (in short "Evidence Act’) have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Section 304 B and 498 A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of "cruelty". In Section 304 B there is no such explanation about the meaning of "cruelty". But having regard to common background to these offences it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498A under which "cruelty" by itself amounts to an offence. Under Section 304 B it is "dowry death" that is punishable ad such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304 B can be convicted under Section 498 A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others vs. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113 B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113 B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

9. The above position was highlighted in Balwant Singh and others vs. State of H.P. (2008(10)JT 589).

10. Section 498A IPC has two limbs. The first limb of Section 498 A provides that whoever, being the husband or the relative of the husband of a woman, subjects such a woman to cruelty shall be punished. "Cruelty" has been defined in clause (a) of the Explanation to the said Section as any wilful conduct which is of such a nature as is likely to drive to a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498A. Clause (a) of the Explanation has definite application to the facts of the present case. Additionally, effect of Section 113 A of the Indian Evidence Act cannot be lost sight of.

11. Further as per Section 113 A of the Evidence Act when the question as to whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband. This has not been rebutted by the appellants."

17. The learned counsel for the revision petitioners would submit that the brother of PW1 was not examined so as to prove the alleged fact that he sold his cable TV business and raised money to the tune of Rs.1 lakh for the purpose of gratifying the demand of A1. In my opinion, had the brother of PW1 examined, certainly, he would have been faced with the same criticism that he happened to be the brother of PW1. Wherefore, the question of examining PW1’s brother before the trial court does not arise. As per Section 134 of the Indian Evidence Act it is not the number of witnesses that matters but the quality of evidence that should be taken note of. In matters of this nature, the Hon’ble Apex Court in catena of decisions laid down the law that the court could place reliance on the evidence of near and dear relatives, inasmuch as strangers to the family concerned would not be able to speak about the occurrence happened within the four walls of a house and further more even the neighbours and friends will be reluctant to come forward to speak about the family affairs. Absolutely, there is no defence found exemplified during cross examination of the prosecution witnesses. When I posed this question to the learned counsel for the revision petitioner, he would in all fairness would invite the attention of this court to the excerpts during the cross examination of PW1 and it is extracted here under for ready reference. VERNACULAR (TAMIL) PORTION DELETED

As such a bare perusal of them would reveal and expatiate that it is the case of A1 that PW1 was not a dutiful wife, and that she was not adjustable. There is not even any occurrence of grave incident suggested during cross of PW1, indicating that she was cruel in her attitude towards the husband. It is also found suggested to her that she tried to black mail the husband and his family members. Absolutely, there is nothing to highlight, as to what type of black mail she indulged in as against A1 and his family members.

18. I am fully aware of the legal proposition that in criminal cases, the accused is not expected to take any specific defence and the accused is also not expected to examine himself as a witness.

19. My mind is reminiscent and redolent of the maxim Nemo Tenetur Seipsum Accusare – No one can be compelled to criminate himself and the accused can keep mum without disclosing anything. However, the court should not lose sight off the significance of Section 105 of the Indian Evidence Act. A bare perusal of the catena of decisions rendered by the Hon’ble Apex Court, coupled with Section 105 of the Indian Evidence Act would clearly convey and project that, in certain matters, when certain factors are within the knowledge of the accused and if there is no such disclosure then, that can certainly be looked askance at also.

20. This is a case emerged out of matrimonial rift occurred in the life of PW1 and A1 and in such a case, A1 should have come forward with some specific case of his own as to what was the actual dispute, which made PW1 and A1 to live apart from each other. Absolutely, there is no iota or shred, miniscule or molecule of explanation available. In such a case, cogent and convincing evidence of PW1 cannot be brushed aside or thrown away by looking askance at it. PW1 also clearly deposed as to how A1 demanded dowry over and above, what was given to him on various occasions and that he even while she was with him after undergoing caesarean operation, he beat her, which also caused injury to her in the area of operation, etc.

21. Hence, I could see absolutely no perversity or impropriety on the part of both the courts below in finding A1 guilty of the offences under Section 498-A IPC and Section 4 of the Dowry Prohibition Act and it warrants no interference.

22. However, relating to the sentence portion is concerned, the learned counsel for the revision petitioner would make an extempore submission that the sentence of two years each imposed under Section 498-A IPC and Section 4 of Dowry Prohibition Act, is harsh.

23. I am of the considered opinion that since the nature of the injuries inflicted on PW1 by A1, were not so horrible or macabre, gruesome or horrendous awarding of two years imprisonment is disproportionate to the crime committed by A1 and it could be reduced to 6 months.

24. It is also a fact that under Section 4 of Dowry Prohibition Act, sentence less than 6 months imprisonment should not normally be awarded. Hence, I am of the view that both under Section 498-A IPC as well as Section 4 of Dowry Prohibition Act, the sentence of six months imprisonment each could be awarded and that would meet the ends of justice and both the sentences are ordered to run concurrently.

25. Regarding the fine portion of the sentence, it is left in tact as against A1. Accordingly the revision is partly allowed setting aside the conviction recorded and the sentence imposed as against A2 and she is set at liberty. As against A1, conviction recorded by the trial court and as confirmed by the Appellate Court for the offence under Section 498-A IPC and Section 4 of Dowry Prohibition Act is confirmed and the sentence of 2 years each imposed under those two penal provisions is reduced to 6 months simple imprisonment each and both are ordered to run concurrently. The fine imposed by the trial court and as confirmed by the appellate court is allowed to be in tact. A copy of this order shall be sent to the lower Court, which is expected to issue warrant for securing the presence of A1 for sending him to jail to undergo the punishment, if not he has already undergone.

26. Accordingly, the revision is partly allowed. Consequently, the connected miscellaneous petition is closed.

vj2

To

1. The Additional District and Sessions Judge

(Fast Track Court No.V), Chennai

2. The Chief Metropolitan Magistrate, Egmore,

Chennai

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