Righ to privacy in matrimonial proceedings

 

Judgements Cited :

1.K. A. Abdul Jaleel vs T.A. Shahida

2. State of Gujarat vs Ramprakash P. puri 

3. Sahara India Real Estate Corporation Limited vs. SEBI

4. R. Sukanya vs. R. Sridhar

 

 

High Court

x vs y  on 1 June, 2020Bench: M.S.Ramachandra Rao

 THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

                  Civil Revision Petition No.275 of 2020


ORDER :

This Civil Revision Petition is filed by the petitioner under Article 227 of the Constitution of India challenging order dt.23.12.2019 in IA No.92 of 2019 in HMOP.No.117 of 2019 on the file of the Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car Bomb Blast Court-cum-Additional Family Court-cum-XXIII Additional Chief Judge-cum-IX Additional Metropolitan Sessions Judge, Hyderabad.

2. The said HMOP was filed on 12.9.2019 by the petitioner in under Section 13 (1)(ia) of the Hindu Marriage Act, 1955 (for short “the Act”) alleging that the respondent had treated him and his family members with cruelty and sought relief of dissolution of the marriage solemnized between them on 02.08.2012.

3. No counter affidavit has been filed by respondent in the OP till date.

4. The petitioner and the respondent have two minor children by name Baby Rishita (aged between 4 to 5 years) and Baby Rama Sri Vidya (aged less than 3 years).

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IA No.91 of 2019


5. Pending the OP, petitioner filed I.A.No.91 of 2019 under Section 26  of the Act for custody of both the children every week and during school holidays.

6. Though a counter affidavit was filed by respondent in the Court below opposing the grant of above relief to petitioner, during the course of hearing of the IA No.90 of 2019, the respondent, through her counsel stated that she had no objection if the custody of the children is given to petitioner on every Sunday from 8 AM to 6 PM. The order of the trial court in IA No.91 of 2019

7. In the order dt.23.12.2019 in I.A.No.91 of 2019, the Court below took note of the contentions of the parties and the legal position relating to grant of visitation rights and held that the children ought to get the love and affection of both parents. It therefore granted custody of the elder child Baby Rishita to petitioner on every Saturday from Friday 5 PM to Monday 10 AM; and also granted custody of the younger child Baby Rama Sri Vidya on every Sunday from 9 AM to 6 PM to him until further orders. It directed that petitioner shall pick up and drop off the children as per the above schedule. I.A.No.92 of 2019

8. The petitioner filed I.A.No.92 of 2019 also on 12.09.2019 under Section 151 of Civil Procedure Code seeking direction to the respondent not to divulge the contents of the proceedings pending in the Family Court or any material concerning the disputes between them without obtaining the specific leave of the said Court to any unauthorized third-party including the media.

9. In the affidavit filed in support of the said application, the petitioner contended that since 20.04.2019 the respondent was living with her parents at Uppal in Hyderabad; that the respondent lodged a complaint against the petitioner and his parents with the Woman Police Station, Hyderabad making false allegations of demand of dowry and additional dowry and harassment; and that the complaint was registered as F.I.R.No.233 of 2019, for offences under 498A, 406 and 323 of I.P.C. read with Sections 4  and 6 of Dowry Prohibition Act on 27.04.2019. It is contended that since then the respondent was addressing the media exclusively with a view to malign the petitioner and his parents in public.

10. The petitioner contended that the respondent complained to the Child Welfare Commission that the two children who were in his custody were denied food milk and water and that they require protection and shelter; on the basis of the said false complaint, the officials of the Child Welfare Commission / Child Helpline visited petitioner’s house around 06:00 p.m. on 28.04.2019; that after interaction with the children, the petitioner and his parents, they were satisfied that the complaint of the respondent was without any merit.

11. It is contended that the respondents and her parents, relatives and other people hired by her resorted to a Dharna from 02:00 p.m. onwards in front of the petitioner’s house on 28.04.2019; and the media hired by them covered the Dharna from the beginning and by evening the shouting and other unlawful activities of these said individuals made the police officers and the Child Welfare Commission officers suggest to petitioner’s father to hand over the younger child to the respondent, and the elder child was requested to be produced the next day at ‘Bharosa Centre’. It is stated that petitioner accordingly handed over the child to the respondent on 28.04.2019.

12. It is contended that the respondent addressed media in the compound of the petitioner’s house on 28.4.2019 holding the younger child in her hands without any concern for the trauma that caused to the child.

13. It is contended that the next day i.e, 29.4.2019 at ‘Bharosa Centre’ when the Child Welfare Commission officials allegedly informed the respondent that issue of custody can only be adjudicated by a Court of competent jurisdiction and that the elder child did not require any protection, the respondent and her parents created a lawless situation. It is alleged that the father of the respondent shouted at the officials and threatened them and even tried to grab the elder child from the petitioner and he egged the respondent to forcibly grab the child from the petitioner along with his relatives. It is also contended that when petitioner was leaving the ‘Bharosa Centre’ with the elder daughter, the relatives of the respondent attacked him with a view to cause bodily harm and injuries.

14. It is stated that thereafter the respondent filed W.P.No.10142 of 2019 for a Writ of Habeas Corpus and a detailed order was passed on 02.05.2019 advising the parties not to take the issue to the media as trial by media is not justified. It is stated that ultimately the Writ Petition was disposed of granting liberty to the parties to work out their respective rights in accordance with law.

15. In view of the above events, the petitioner sought a direction to the respondent not to divulge the contents of the proceedings pending in the Family Court or any material concerning the disputes between them without obtaining leave of the Court to any unauthorized third- party including media.

Counter of the respondent in I.A.No.92 of 2019

16. The respondent filed a counter denying all the allegations leveled by the petitioner.

17. Firstly, she contended that the application is not maintainable and the relief in the nature of an injunction / restraining order should have been sought and that the petitioner cannot seek any direction.

18. The respondent alleged that the petitioner and his parents beat her etc., and also dumped her in a hospital without informing her parents and so she started living with her parents since 20.04.2019. She denied the allegations leveled in the O.P. against her. While admitting that filed F.I.R.No.223 of 2019 against the petitioner and his parents on 27.04.2019, she also admitted that she had addressed the Media thereafter and claimed that the circumstances had driven her to approach the Media. She also stated that only because of pressure caused by such Media, the petitioner returned the younger child to her.

19. She claimed that when officials of the Child Welfare Commission visited the house of the petitioner’s father they were over-powered by the father of the petitioner who used all his experience and skill to ensure that the said officials did not help the respondent in her cause.

20. She denied that she brought hired men and women for conducting a Dharna near the house of the petitioner on 28.04.2019 but did not deny that such a Dharna took place from 02:00 p.m. onwards at the said house at the house of the petitioner. She admitted that she had answered questions put to her by the Media then. She claimed to have taken help of officials and activists from NGOs to save her children.

21. She also relied on certain CC camera footage in support of her pleas.

 

22. She denied that her father shouted at officials and tried to grab the elder child from the petitioner or that her relatives attacked the petitioner with a view to cause bodily harm at the Bharosa centre. She alleged that the petitioner did not come to the Court with clean hands and resorted to distortion of certain facts.

Reply-affidavit of the petitioner

23. The petitioner contended that the respondent cannot rely on the contents of the FIR. No.223 of 2019 lodged by her against him and her parents or the supplementary complaint lodged by her with the police on 23.09.2019 since they are subject matter of investigation by the police and any attempt by the respondent to do so would amount to influencing the investigation and is impermissible in law. He however denied the contents of the said complaint and reserved his right to defend himself in case the matter goes before the Criminal Court.

24. He also stated that though petitioner referred to CC camera footage of 20.04.2019 and 27.04.2019, the same had not been furnished to him though notice was issued on 28.09.2019 by his counsel to the counsel for respondent to furnish the same.

25. He alleged that the respondent tried to run towards one of the three balconies in his house with a view to harm herself and throw the blame on the petitioner and his parents on 20.04.2019 and after coming down she abused petitioner’s parents and ran into the kitchen at 11:37 p.m. and tried to lock the doors from inside to ignite the stove and cause harm to herself and implicate the petitioner and his parents.

26. He reiterated that the media hired by the respondent, her father and relatives and also the persons who conducted Dharna at the respondent’s instance, and at the Bharosa Centre, depicted everything done by the respondent and her father. He also alleged that physical assault was carried on him at the Bharosa Centre on 29.4.2019 by relatives of the respondent which was viewed by the Police seriously who registered it as a case.

27. He also alleged that the respondent along with her counsel held a Press Meet with Ms.Barkha Dutt which was telecast on 30.09.2019 at 11:00 p.m. Counter of the respondent to the reply-affidavit filed by the petitioner in I.A.No.90 of 2019

28. This document is placed on record through a Memo dt.01.05.2020 before this Court during the hearing of this CRP, and the connected Civil Revision Petition Nos.360 and 735 of 2020 on 01.05.2020.

29. The petitioner’s counsel pointed out that in the said counter- affidavit filed by the respondent to the reply-affidavit filed by the petitioner in I.A.No.90 of 2019, in para no.5, the respondent stated as under :

“5. The contents of para 17 of the reply-affidavit are hereby denied. It is false to state that I along with my counsel held a press ::9:: MSR,J crp_275_2020 meet with Barkha Dutt. I respectfully submit that Ms. Barkha Dutt extended her invitation to me and my counsel, to attend her event titled, ‘WE THE WOMEN’, which was presented by FACEBOOK and partnered by U.N. WOMEN. The event was held in Kolkata and several celebrities attended the same. The entire expenditure for our travel, stay etc., were met by the team of Barkha Dutt. It was no press meet, as sought to be represented by the petitioner.

6.I submit that at the meet, I was questioned about the videos, which went viral on electronic and social media, showing me being attacked by my husband and father-in-law. I replied to the questions put to me. The entire gathering of women expressed solidarity with me.”

The order dt.23.12.2019 in I.A.No.92 of 2019

30. The court below extracted the contents of the pleading of the parties and referred to the decisions cited by the parties. It distinguished the decisions cited on facts and observed that they cannot be applied to the instant case as most of them pertained to criminal cases and injunctions were granted against Media houses not to publish or print any matter between the parties. It also observed that no injunction was sought for or granted against the spouse not to disclose the disputes between both the parties to any person or media. It observed that Section 22  of the Hindu Marriage Act, 1955 amply takes care of the situation and that it protects and safeguards the interests and privacy of the parties in a matrimonial case.

31. It then dismissed the I.A. stating that it was not the case of the petitioner that so far, the respondent had divulged the contents of the proceedings of the O.P. to any unauthorized party or the media till 23.12.2019 and that no proof was filed before the Court except orally asserting that she is giving interviews to media. The instant CRP

32. Assailing the order in I.A.No.92 of 2019 in HMOP.No.117 of 2019 of the Court below, the present Civil Revision Petition is filed by the petitioner.

33. On 10.02.2020, this Court issued notice to the respondent and granted interim direction restraining the respondent from divulging the disputes between the parties and the contents of the proceedings pending before the Court below in HMOP.NO.117 of 2019 to any unauthorized third-party including the media, pending disposal of this CRP.

34. On 27.02.2020, the respondent entered appearance through Ms. S. Vani, Advocate.

35. On 01.05.2020, arguments of Sri Sunil Ganu, counsel for the petitioner and Ms S. Vani, Counsel for the respondent were heard in this Revision along with the connected Civil Revision Petition Nos.360 and 735 of 2020.

The contentions of the parties :

36. The counsel for the petitioner contended that when the respondent herself admitted :

(a) to addressing the Media after lodging the F.I.R. on 27.04.2019 against the petitioner and her parents in the counter- affidavit filed by her (para no.7, page no.3 of the counter filed in I.A.No.92 of 2019);

(b) that there was a Dharna at the house of the petitioner on 28.04.2019 where she received support from several women and that she had addressed the Media then also (para no.9, page no.4 of the counter);

(c) in counter to reply-affidavit filed by respondent in I.A.No.90 of 2019 (para nos.5 and 6, at page no.2) about participating in an event titled ‘WE THE WOMEN’ on Facebook partnered by U.N. WOMEN which took place at Calcutta, that the entire expenditure of her travel, stay, etc., were sponsored by the team of prominent T.V. personality Ms. Barkha Dutt, that she had been questioned about the videos circulated by her on electronic and social media and she answered the questions put to her, which was telecast on 30.09.2019, there is every apprehension in the mind of the petitioner that, notwithstanding the legal prohibition to publish any matter in matrimonial proceedings under Section 22  of the Hindu Marriage Act, 1955, the respondent would freely speak to the Media about them, and the Court below therefore erred in denying relief to the petitioner.

He also contended that as soon as the F.I.R. was lodged by the respondent against the petitioner and his parents, the respondent had addressed the Media extensively and such Media trial is unwarranted, be it in the Family Court or in the Criminal Court, and would cause prejudice to the petitioner.

He also contended that the Court below took a hyper-technical view in declining relief to the petitioner on the ground that petitioner should have filed proof that the respondent had already divulged the contents of the proceedings of this HMOP and that it had ignored the above referred admissions of the respondent totally, by observing that ‘no proof is filed before the Court except orally asserting that she is giving interviews to media’.

37. The counsel for the respondent contended that the prayer made in I.A.No.92 of 2019 is in the nature of a direction to the respondent invoking Section 151 of C.P.C. and that the petitioner could have only invoked provisions relating to injunction contained in the Specific relief act 1963 before a competent Civil Court and not the Family Court. She further contended that petitioner did not make out any prima facie case, that he did not have balance of convenience for grant of relief in the nature of injunction and no irreparable injury would be caused to him. She stated that Section 22 of the Hindu Marriage Act offers adequate protection to the petitioner.

 

38. She also offered that her client would file an undertaking before this Court that she would not publish any matter in the Media relating to the proceedings in the H.M.O.P.No.117 of 2019. Consideration by the Court

39. I have noted the contentions of both sides.

40. First I shall deal with the contention of the counsel for respondent that petitioner should have approached the ordinary Civil Court for injunctive relief invoking the Specific Relief Act, 1963.

41. The HMOP.No.117 of 2019 has been filed in the Additional Family Court, at Hyderabad by the petitioner.

42. Such Family Courts were established to inter alia exclusively deal in matters relating to matrimonial relief including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to validity of marriage, maintenance etc.

43. Under Section 7(1) of the Family Courts Act, 1984, it has jurisdiction which is exercisable by any District Court or any Subordinate Civil Court under any Law for the time being in force in respect of suits and proceedings of the nature referred to in the explanations thereto which include suits and proceedings referred to in the earlier paragraph.

44. Under Clause (a) of Section 8  where a Family Court has been established for any area, no District Court or any Subordinate Court referred to in Sub-Section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit, proceeding of the nature referred to in the explanation to that sub- Section.

45. The jurisdiction conferred on the Family Court under Section 7  of the Family Courts Act, 1984 has to be liberally construed and parties to a proceeding before such Family Court like the petitioner, cannot be compelled to approach the ordinary Civil Court for any relief, interim or final, in connection with the matrimonial dispute he has with the respondent.

46. In K.A. Abdul Jaleel v. T.A. Shahida1, the Supreme Court observed that though Clause (c) of explanation to Section 7 empowers the Family Court to deal with a suit or proceeding between the parties to a marriage with respect to the property of the parties or either one of them, the said Clause has to be broadly construed conferring on the Family Court, jurisdiction to decide disputes between parties to a marriage though such marriage is no longer subsisting between them. It declared :

“11. … … … The wording “disputes relating to marriage and family affairs and for matters connected therewith” in the view of this Court must be given a broad construction. The Statement of objects and reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean the properties claimed by the parties thereto as a spouse of the other;

    (2003) 4 SCC 166
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irrespective of the claim whether the property is claimed during the subsistence of a marriage or otherwise.

12. The submirespondention of the learned counsel to the effect that this Court should read the words “a suit or proceeding between the parties to a marriage” as parties to a subsisting marriage, in our considered view would lead to miscarriage of justice.

13. The Family Court was set up for settlement of family disputes. The reason for enactment of the said Act was to set up a court which would deal with disputes concerning the family by adopting an approach radically different from that adopted in ordinary civil proceedings. The said Act was enacted despite the fact that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure (Amendment) Act, 1976, which could not bring about any desired result.

14. It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.” (emphasis supplied)

47. Therefore, the petitioner having filed the HMOP.No.117 of 2019 in the Additional Family Court, at Hyderabad cannot again approach the ordinary Civil Court for any relief in connection with the matrimonial dispute he has with the respondent.

48. In fact, under Section 10 of the Family Courts Act, 1984, the Family Court itself is deemed to be a Civil Court and is conferred with all the powers of such a Court.

49. Though, the powers of a Civil Court under the Code of Civil Procedure are conferred on the Family Court by Sub-Section (1) of Section 10, Sub-Section (3) of Section 10 states that the Family Court ::16:: MSR,J crp_275_2020 is not prevented from laying down its own procedure to determine the truth of the facts in the matter before it.

50. Section 20 of the Family Courts Act, 1984 gives overriding effect to the said statute over anything inconsistent therewith in any other law.

51. No doubt, the petitioner has sought relief in I.A.No.92 of 2019 in the form of a direction under Section 151 of C.P.C. to the respondent not to divulge the contents of the proceedings in the HMOP.no.117 of 2019 or any material concerning the disputes between them, without obtaining the specific leave of the Court, to any unauthorized third-party including the Media.

52. The said relief is not couched as an injunctive relief restraining the respondent from divulging the contents of the proceedings in the HMOP.no.117 of 2019 or any material concerning the disputes between them, without obtaining the specific leave of the Court, to any unauthorized third-party including the Media.

53. According to me, the contention of the counsel for respondent that only injunctive relief can be sought, if at all, by the petitioner against the respondent and not the relief in the nature of a direction, is hyper-technical in nature.

54. When Section 10(3) of the Family Courts Act, 1984 permits the Family Court to lay down its own procedure notwithstanding that it has the powers of a Civil Court under the Code of Civil Procedure, ::17:: MSR,J crp_275_2020 1908, it cannot be said that except injunctive relief, petitioner cannot seek interim relief of the nature sought by him under Section 151 C.P.C. in I.A.No.92 of 2019. After all, procedure is only a hand-maid of justice.

55. The Supreme Court in State of Gujarat v. Ramprakash P. Puri2 had held :

“5. … … Procedure has been described to be a hand maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it… …”

56. I am of the opinion that the manner in which the prayer is couched is not particularly relevant, and the Court has to consider whether on the facts and circumstances of a particular case whether the prayer sought can be granted or moulded appropriately. It cannot throw out applications filed for interim relief on the specious ground that they are is not properly worded as long as the prayer sought conveys proper sense and meaning.

57. Therefore, the objection of the counsel for respondent that the petitioner can only seek injunctive relief, that too in a Civil Court, is without any merit and is rejected.

58. Next I shall consider whether the petitioner had made out any prima facie case for grant of the relief sought by him in I.A.No.92 of 2019.

    (1969) 3 SCC 156
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59. It is not disputed by the counsel for the respondent that Sub- Section (1) of Section 22 of the Hindu Marriage Act, 1955 mandates that every proceeding under the said Act should be conducted in camera and further prohibits any person to print or publish any matter in relation to any such proceeding except a judgment of a High Court or the Supreme Court printed or published with the previous permission of the Court. Sub-Section (2) of Section 22 states that if any person prints or publishes any matter in contravention of the provisions contained in Sub-Section (1), he shall be punishable with fine which may extend to Rs.1000/-.

60. Thus, the Hindu Marriage Act, 1955 itself prohibits publication or printing of any matter in relation to a proceeding under the said Act. If so, there is no necessity for the petitioner to produce proof of any such publication in contravention of Sub-Section (1) of Section 22 by the respondent to seek the interim relief of restraining the respondent from making any such publication in the Media, Print or Electronic or Social media, without the permission of the Court.

61. It is shocking that the Court below, having noticed Section 22 of the Hindu Marriage Act, did not appreciate its significance and required the petitioner to produce proof of publication by the respondent of the matter in relation to the HMOP filed by him against the respondent.

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62. In my opinion, there is no obligation on the petitioner to produce any such proof in view of the specific language of Sub- Section (1) of Section 22, and the punishment imposed on the offending party by Sub-Section (2) of Section 22 if he / she were to contravene provisions contained in Sub-Section (1).

63. In the instant case, as pointed out by the counsel for petitioner, the respondent has admitted that she has gone to the Media not only after she filed F.I.R.No.223 of 2019 against the petitioner and her parents on 27.04.2019, but also at the time Dharna was conducted by certain third parties at the house of the petitioner in the presence of the respondent and her parents on 28.04.2019. She also admitted in the counter to the reply-affidavit in I.A.NO.90 of 2019 that she attended an event at Calcutta for which entire expenditure of her travel and stay were met by a prominent T.V. Host and personality by name Ms. Barkha Dutt (which was telecast on 30.4.2019 after the OP was filed) and she answered questions about certain videos which went viral on electronic and social media about the allegations leveled by her against the petitioner and his parents.

64. In the light of the aforesaid admissions by the respondent about speaking to Media, posting videos on social and electronic media regarding her dispute with the petitioner, the petitioner was entitled to have a reasonable apprehension that she would continue to do so, even after the filing of the HMOP, undeterred by the small fine of ::20:: MSR,J crp_275_2020 Rs.1,000/- which she might incur for making such publication under sub-section (2) of Sec.22 of the Act.

65. A Constitution Bench of the Supreme Court in Sahara India Real Estate Corporation Limited vs. SEBI3 held that excessive prejudicial publicity leading to usurpation of functions of the Court interferes with administration of justice and also prejudices or interferes with particular legal proceedings. In such cases, Courts are duty-bound under inherent jurisdiction to protect the presumption of innocence.

66. The Madras High Court in R. Sukanya vs. R. Sridhar4 made the following observations in the context of a matrimonial proceeding and the prohibition contained in Section 22 of the Hindu Marriage Act, 1955 :

“23. The right of privacy created by the statute has to be preserved. The very inception of the provision, Section 22 in the Hindu Marriage Act makes it clear that matters pertaining to matrimonial affairs are intended to be conducted ‘in-camera” and not intended to be divulged to others, except publication of the judgment with the leave of the Court. Right of privacy in matrimonial matters between the “parties in a litigation under Marriage Acts is personal to the litigating parties. Thus it is manifestly clear that the legislature has intended to guard the right of privacy in relation to matrimonial matters and it is a settled legal position that the real meaning and effect should be given to the words employed in the Statute. In the light of language employed in the Statute, the right of privacy is so fundamental to the individual excepting to the extent provided under the Marriage Acts. Of course, we should not forget the role of our independent pres and media in coming out with relevations of public interest; resulting in societal changes. As the freedom of the press is for the dissemination of information of public interest and public affairs, those which are not related to the above, but (2012) 10 S.C.C. 603 Manu / TN /1115/2008 ::21:: MSR,J crp_275_2020 involving the marital relationship of the parties to a litigation should not be published or telecast, as it is prohibited under law. Publication of the proceedings meant to be in-camera will affect the constitutional liberty guaranteed to the individual and it would be an invasion of his right of privacy. When Section 22(1) of the Act prohibits printing or publishing any matter in relation to any such proceeding arising under the Act, the Family Court or any other competent Court dealing with matrimonial matter, under the Hindu Marriage Act, has inherent jurisdiction to issue an order of injunction or any such direction to give full effect to the statutory provision. Therefore, the contention of the respondents 2 to 5 that they are not parties to the Original Petition and, therefore, no injunction can be granted against them, cannot be countenanced.”

67. I completely endorse the above principle laid down in the above case that right of privacy of parties to matrimonial proceedings has to be protected and the legislative mandate has to be respected. The Family Court has inherent power to issue an order of injunction or any such direction to give full effect to Section 22 of the Hindu Marriage Act, 1955.

68. I further hold that the petitioner had shown prima facie case for grant of interim relief in I.A.No.92 of 2019, that he has balance of convenience in his favour and serious prejudice would be caused to him if there is a media trial by publication in electronic or print or social media by the respondent of any matter relating to H.M.O.P.No.117 of 2019 or any material concerning disputes between them without obtaining the specific leave of the Court.

69. Accordingly, the Civil Revision Petition is allowed and consequently I.A.No.92 of 2019 in H.M.O.P.No.117 of 2019 is also allowed. No order as to costs.

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70. As a sequel miscellaneous petitions pending if any, in this Civil Revision Petition, shall stand closed.

____________________________ M.S.RAMACHANDRA RAO, J Date :01.06.2020 Ndr

 

Supreme Court of India
Prof. R.K. Vijayasarathy vs Sudha Seetharam on 15 February, 2019
                                                                                    REPORTABLE



                                     IN THE SUPREME COURT OF INDIA
                                    CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL No. 238 OF 2019
                              SPECIAL LEAVE PETITION (CRL) No. 1434 OF 2018


          PROF R K VIJAYASARATHY & ANR                                          .... APPELLANTS



                                                        Versus


          SUDHA SEETHARAM & ANR                                                ....RESPONDENTS



                                                   JUDGMENT

Dr Dhananjaya Y Chandrachud, J 1 Delay condoned.

2 The present appeal arises from the judgment and final order dated 1 January 2016 of the High Court of Karnataka, rejecting the prayer of the appellants to quash the criminal proceedings instituted by the first respondent against them. The High Court stayed the criminal proceedings till the disposal of a pending civil suit instituted by the son of the appellants against the first respondent.

Signature Not Verified The facts relevant to the present dispute are thus: Digitally signed by DEEPAK SINGH Date: 2019.02.15 Rajiv Vijayasarathy Ratnam, (the son of the appellants) and Savitha Seetharam 18:33:16 IST Reason:

(the daughter of the first respondent) were married on 24 May 2002. They moved to the United States of America and a child was born to them in 2009. Savitha was involved in a car accident on 5 February 2010 and proceedings were initiated against her abroad. It is alleged by the appellants that fearing the attachment of their son’s property in the proceedings, an amount of Rs 20 lakhs was transferred by Rajiv to the bank account of the first respondent on 17 February 2010. Following a breakdown in marital relations, Savitha and Rajiv have been living separately since October 2010. Multiple rounds of litigation ensued in various courts.

4 Savitha filed a private complaint1 against her husband Rajiv and the appellants alleging the commission of various offences, including criminal intimidation and a demand for dowry. The High Court of Karnataka quashed the proceeding against appellant No. 2. On 14 February 2013, Rajiv filed a civil suit for recovery of money2 against the first respondent for the return of the money allegedly transferred by him into her bank account. The suit is pending. Two divorce petitions instituted by Savita have been dismissed by the family court. 5 On 25 February 2016, the first respondent filed a private complaint 3 against the appellants which forms the subject matter of the present appeal. The first respondent alleges that the amount of Rs 20 Lakhs which was transferred by the son of the appellants was returned in cash to the appellants with interest of Rs 24,000 on 1 July 2010. No receipt was allegedly received by the first respondent. It is alleged that the appellants and their son have colluded to siphon the money and that the civil suit filed by the son of the appellants is without merit. 1 PCR No. 3418 of 2012; FIR No. 18 of 2012 registered on 23 February 2012 3 PCR 2116 of 2016 On 11 May 2016, the Additional Metropolitan Magistrate referred the complaint for investigation under Section 156(3) of the Code of Criminal Procedure 1973. On 19 May 2016, a First Information Report 4 was registered under Sections 405406415 and 420 read with Section 34 of the Penal Code. Aggrieved by the judgment and final order of the High Court rejecting their petition to quash the FIR, the appellants have filed the present appeal. 6 Mr Nidhesh Gupta, learned Senior Counsel representing the appellants urged the following submissions:

i) No offence is made out from the averments in the complaint as they stand;

ii) The first respondent has admitted that the amount which forms the subject matter of the present dispute was received from the son of the appellants;

iii) The subject matter of the present dispute is of a civil nature and the criminal complaint constitutes an abuse of the process of the court; and

iv) The allegations in the present complaint are similar to the previous complaint filed by the daughter of the first respondent.

7 On the other hand, Ms Pritha Srikumar, learned counsel for the respondents urged the following submissions:

i) The criminal proceeding is not liable to be quashed as the allegations in the complaint disclose the ingredients necessary to constitute an offence under Sections 405406415 and 420 of the Penal Code;

ii) The appellants have colluded with their son to siphon the money as no receipt was given to the first respondent when the amount of Rs 20,24,000 was transferred; and

iii) The law does not require that the complaint should reproduce verbatim every ingredient of the criminal offence in the complaint. 4 FIR 8 The rival submissions fall for our consideration. 9 The primary question before this Court is whether the High Court has erred in rejecting the plea of the appellants for quashing the criminal proceedings against them. The question at the heart of the present dispute is whether the averments in the complaint disclose the ingredients necessary to constitute an offence under the Penal Code.

10 Section 482 of Code of Criminal Procedure saves the inherent power of the High Court to make orders necessary to secure the ends of justice. In Indian Oil Corpn. v NEPC India Ltd.5, a two judge Bench of this Court reviewed the precedents on the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure 1973 and formulated guiding principles in the following terms:

“12. …

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the 5 (2006) 6 SCC 736  ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) …” 11 The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 12 The first respondent has alleged in the complaint that the appellants have committed offences under Sections 405406415 and 420 read with Section 34 of the Penal Code. It would thus be necessary to examine the ingredients of the above offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code.

13 Section 405 of the Penal Code reads thus:

Section 405.- Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion  over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”.

A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:

i) A person should have been entrusted with property, or entrusted with dominion over property;

ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and

iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.

Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code6.

14 Section 415 of the Penal Code reads thus:

Section 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to 6 Section 406. 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.

deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” The ingredients to constitute an offence of cheating are as follows:

i) there should be fraudulent or dishonest inducement of a person by deceiving him;

ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or

(b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and

iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

15 Section 420 of the Penal Code reads thus:

Section 420. Cheating and dishonestly inducing deliver of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and  which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The ingredients to constitute an offence under Section 420 are as follows:

i) A person must commit the offence of cheating under Section 415; and

ii) The person cheated must be dishonestly induced to

(a) deliver property to any person; or

(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

Cheating is an essential ingredient for an act to constitute an offence under Section 420.

16 A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. The relevant extract of the complaint filed by the first respondent is extracted below:

“The accused person’s son Mr. Rajiv Vijayasarathy Ratnam started to transfer all his monies to different accounts and also transferred some monies belonging to him in the US to his parents accounts in Bangalore, India and he also pleaded his wife i.e. Complainant’s daughter that he also wanted to divert some funds unto Complainant’s account in Bangalore…That Rajiv Vijayasarathy Ratnam diverted some of his monies to Accused No. 1 and 2 and the Complainant… It is further pertinent to mention that the accident occurred on 05.02.2010 and money was transferred on 17.02.2010, the transfer was due to the insecurity at the behest of Mr. Rajiv Vijayasarathy Rathnam, the money was not sought or required by the complainant.

The Complainant daughter Ms. Savitha Seetharam convinced the Complainant to accept transfer of monies which was for the benefit of the Accused person’s son Mr. Rajiv Vijayasarathy Ratnam and to hold it in trust for him and accordingly the son of the accused transferred monies on 17th February 2010 to the Complainant account Rs. 20,00,000/- (Rupees Twenty Lakhs only) … It is pertinent to mention that the accused person’s son Mr. Rajiv Vijayasarathy Ratnam insisted the Complainant and her husband to pay the said monies by way of cash to the accused person’s including the interest…Mr. Rajiv Vijayasarathy Ratnam sought for the return of the aforesaid monies i.e. of Rs. 20,00,000/-” “…The said monies were paid in cash as per the dicta of the accused person’s son Mr. Rajiv Vijayasarathy Ratnam has filed a false and frivolous suit…” (Emphasis supplied) 17 The condition necessary for an act to constitute an offence under Section 405 of the Penal Code is that the accused was entrusted with some property or has dominion over property. The first respondent has stated that the disputed sum was transferred by the son of the appellants of his own volition to her. The complaint clearly states that the amount was transferred for the benefit of the son of the appellants and that the first respondent was to hold the amount ‘in trust’ for him. The complaint alleges that the money was transferred to the appellants ‘as per the dicta’ of the son of the appellants. There is on the face of the complaint, no entrustment of the appellants with any property. 18 The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. The first respondent admitted that the disputed sum was transferred by the son of the appellants to her bank account on 17 February 2010. She alleges that she transferred the money belonging to the son of the appellants at his behest. No act on part of the appellants has been alleged that discloses an intention to induce the delivery of any property to the appellants by the first respondent. There is thus nothing on the face of the complaint to indicate that the appellants dishonestly induced the first respondent to deliver any property to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out.

19 In Binod Kumar v State of Bihar7 certain amounts were due and payable to a contract worker. When the amount due was not paid due to a termination of the contract, the worker filed a criminal case against the appellant for criminal breach of trust. The appellants’ petition under Section 482 of the Code of Criminal Procedure for quashing was dismissed by the High Court. A two judge Bench of this Court examined the ingredients of the offence and whether the complaint on its face disclosed the commission of any offence. This Court quashed the criminal proceedings holding thus:

“14. At this stage, we are only concerned with the question whether the averments in the complaint taken at their face value make out the ingredients of criminal offence or not.

18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent 7 (2014) 10 SCC 663  and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property…

19. Even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal proceedings are not a shortcut for other remedies. Since no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of Sections 405/420 IPC are missing, the prosecution of the appellants under Sections 406/120-B IPC, is liable to be quashed.” 20 The suit for recovery of money was instituted by the son of the appellants against the first respondent in 2013. The complaint alleging offences under the Penal Code was filed by the first respondent belatedly in 2016. It is clear from the face of the complaint, that no amount was entrusted by the first respondent to either of the appellants and there was no dishonest inducement of the first respondent by the appellants to deliver any property. As stated by the first respondent in the complaint, the money belonged to the son of the appellants. It was transferred by the appellants’ son to her on his own volition. The money was alleged to have been returned to the appellants on the instructions of their son. A plain reading of the complaint thus shows that the ingredients necessary for constituting offences under Sections 405415 and 420 of the Penal Code are not made out.

21 The respondents have relied on the decision of this Court in Rajesh Bajaj v State of NCT of Delhi8. In that case, the Delhi High Court had quashed an FIR alleging an offence under Section 420 of the Penal Code on the ground that the 8 (1999) 3 SCC 259 complaint did not disclose the commission of any offence. Allowing the complainant’s appeal, this Court held thus:

“9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details…” The decision does not advance the submission of the first respondent. As we have noted above, the complaint in the present case is bereft of the basic facts necessary to constitute the offences alleged under Sections 405406415 and 420 of the Penal Code.

22 Learned Senior Counsel for the appellant contended that the actions of the first respondent constitute an abuse of process of the court. It is contended that the present dispute is of a civil nature and the first respondent has attempted to cloak it with a criminal flavor to harass the aged appellants. It is also contended that there is an undue delay in filing the complaint from which the present appeal arises, and this demonstrates the mala fide intention of the first respondent in filing the complaint against the appellants. Learned Senior Counsel for the appellants relied on the decision of this Court in State of Karnataka v L Muniswamy9. In that case, the prosecution alleged that eight of the accused had 9 (1977) 2 SCC 699 conspired to kill the complainant. The Karnataka High Court quashed the proceedings on the ground that no sufficient ground was made out against the accused. A three judge Bench of this Court dismissed the appeal by the State with the following observations:

“7…In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.” 23 The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.

24 In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed.

25 For the above reasons, the appeal is allowed. The judgment of the High Court is set aside and the criminal proceedings arising from PCR 2116 of 2016 instituted by the first respondent against the appellants are quashed. We however clarify, that no opinion has been expressed on the merits of the pending civil suit filed by the son of the appellants for the recovery of money. The pending suit shall be disposed of in accordance with the law.

…….……..………………….……………………..J.

[DR DHANANJAYA Y CHANDRACHUD] ……….…..…….………..……………….………..J.

[HEMANT GUPTA] New Delhi;

February 15, 2019.

 

Supreme Court of India
S.Gopal Reddy vs State Of Andhra Pradesh on 11 July, 1996
Equivalent citations: 1996 SCC (4) 596, JT 1996 (6) 268
Author: A Anand
Bench: Anand, A.S. (J)
           PETITIONER:
S.GOPAL REDDY

	Vs.

RESPONDENT:
STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:	11/07/1996

BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MUKHERJEE M.K. (J)

CITATION:
 1996 SCC  (4) 596	  JT 1996 (6)	268
 1996 SCALE  (5)78


ACT:



HEADNOTE:



JUDGMENT:

THE 11TH DAY OF JULY, 1996 Present:

Hon’ble Dr. Justice A.S.Anand Hon,ble Mr.Justice M.K.Mukherjee P.P.Rao, Sr.Adv. A.Sudarshen Reddy, B.Rajeshwar Rao, Ramkrishna Reddy, Vimal Dave, Advs. with him for the appellant Guntur Prabhakar, Adv. for the Respondent J U D G M E N T The following Judgment of the Court was delivered: S.Gopal Reddy V.

State of Andhra Pradesh J U D G M E N T DR. ANAND,J.

The appellant alongwith his brother was tried for offences under Section 420 IPC read with Section 4 Dowry Prohibition Act, 1961. The trial Court convicted them both and sentenced them to undergo 9 months R.I. and to a fine of Rs. 500/- each and in default to undergo S.I. for four months for the offence under Section 420 IPC and to R.I. for 6 months and a fine of Rs. 1000/- each and in default S.I. for six months for the offence under Section 4 Dowry Prohibition Act, 1961 (hereinafter the Act). In an appeal against their sentence and conviction, the Additional Metropolitan Sessions Judge held that no offence under Section 420 IPC was made out and set aside their conviction and sentence for the said offence while confirming their conviction and sentence for the offence under Section 4 of the Act. Both the convicts unsuccessfully invoked the revisional jurisdiction of the High Court.

This appeal by special leave filed by the appellant is directed against the order of the High Court of Andhra Pradesh dated 16.10.1990 dismissing the Criminal Revision Petition filed by the convicts. The brother of the appellant filed SLP (Crl.) 2336 of 1990 against the revisional order of the High Court but that S.L.P. was dismissed by this Court on 15.2.1991.

The prosecution case is as follows :

The appellant (hereinafter the first accused) is the younger brother of the petitioner (hereinafter the second accused) in S.L.P. (Crl.) No.2336 of 1990, which as already noticed was dismissed on 15.2.1991 by this Court. The first accused had been selected for Indian Police Service and was undergoing training in the year 1985 and on completion of the training was posted as an Assistant Superintendent of Police in Jammu & Kashmir Police force. His brother, the second accused, was at the relevant time working with the Osmania University at Hyderabad. P.W.1, Shri G.Narayana Reddy, the complainant, was practising as a lawyer at Hyderabad. PW1 has four daughters. Ms.Vani is the eldest among the four daughters. She was working as a cashier with the State Bank of India at Hyderabad. PW 1 was looking for marriage alliance for his daughter Ms. Vani. A proposal to get Ms.Vani married to the first accused was made by P.W.2, Shri Lakshma Reddy, a common friend of the appellant and PW1. Lateron P.W.2 introduced the second accused to P.W.1, who later on also met Ms Vani and approved of the match. After some time, the first accused also met Ms.Vani at the Institute of Public Enterprises and both of them approved each other for marriage. It is alleged that on 6.5.1985, the second accused accompanied by P.W.2 and some others went to the house of P.W.1 to pursue the talks regarding marriage. There were some talks regarding giving of dowry and the terms were finally agreed between them on 7.5.1985 at the house of the second accused. The first accused was not present either on 6.5.1985 or on 7.5.1985. It is alleged that as per the terms settled between the parties, P.W.1 agreed to give to his daughter (1) house at Hyderabad (2) jewels, cash and clothes worth about at rupees one lakh and (3) a sum of Rs 50,000/- in cash for purchase of a car. The date of marriage, however, was to be fixed after consulting the first accused PW1, however, later on insisted on having an engagement ceremony and contacted the first accused but the first accused persuaded P.W.1 not to rush through the same as it was not possible for him to intimate the date to his friends at a short notice. The first accused came to Hyderabad from Dehradun, where he was undergoing training, on 6.8.1985 and stayed at Hyderabad till 15.8.1985. The first accused attended the birthday party of the youngest sister of Ms.Vani on 15.8.1985 and later on sent a bank draft of Rs.100/- as the birthday gift for her to Ms.Vani. In the letter Ex.P1 which accompanied the bank draft, some reference was allegedly made regarding the settlement of dowry. It is alleged that the first accused later on wrote several letters including exhibits P6,P7,P9 and P10 to Ms. Vani It is the prosecution case that the second accused, on being approached by PW1 for fixing the date of marriage, demanded Rs. 1 lakh instead of Rs. 50,000/- for purchase of car. The second accused also insisted that the said amount should be paid before marriage. The ‘dowry’ talks between the second accused and PW1, however, remained inconclusive. Lateron the date of marriage was fixed as 2.11.1985. On 1.10.1985, the first accused allegedly wrote a letter, exhibit P6, to Ms.Vani asking her to cancel the date of marriage or to fulfil the demands made by his elders. The first accused came to Hyderabad on 20.10.1985 when P.W.1 told him about the demand of additional payment of Rs.50,000/- made by the second accused for the purchase of car. The first accused told P.W.1 that he would consult his brother and inform him about it and left for his native place. lt is alleged that on his return from the village, the first accused asked P.W.1 to give Rs.75,000/- instead of Rs.50,000/- as agreed upon earlier instead of Rs. 1 lakh as demanded by the second accused. According to the prosecution case this talk took place in the presence of Shri Narasinga Rao (not examined) The first accused suggested that P.W.1 should give Rs.50,000/- immediately towards the purchase of the car and the balance of Rs.25,000/- should be paid within one year after the marriage but PW1 did not accept the suggestion. According to the prosecution case `Varapuja’ was performed by PW1 and his other relatives at the house of the second accused on 31.10.1985 At that time P.W.1 allegedly handed over to the first accused, a document Exhabit P-13 dated 12.10.1985, purporting to settle a house in the name of his daughter Ms.Vani alongwith a bank pass book, Exhibit P-12 showing a cash balance of Rs.50,881/- in the name of Ms.Vani. The first accused is reported to have, after examining the document Exhibit P-13, flared up saying that the settlement was for a Double Storeyed House and the document Exhibit P-13 purporting to settle the house in the name of Ms.Vanl was only a single storey building. He threatened to get the marriage cancelled if P.W.1 failed to comply with the settlement as arrived at on the earlier occasions. The efforts of P.W.1 to persuade the first accused not to cancel the marriage did not yield any results and ultimately the marriage did not take place. The first accused then returned all the articles that had been given to him at the time of `Varapuja’. Aggrieved, by the failure of the marriage negotiations, P.W.1 on 22.1.1986 sent a complaint to the Director of National Police Academy where the first accused was undergoing training Subsequently, PW1 also went to the Academy to meet the Director when he learnt from the personal assistant to the Director of the Academy that the first accused was getting married to another girl on 30th of March, 1986 at Bolaram and showed to him the wedding invitation card. P.W.1, thereupon, gave another complaint to the director on 26.3.1986, who, however, advised him to approach the concerned police for necessary action. P.W.1 filed a report Ex.P20 at Chikkadapalli Police Station on 28.3.1986. The Inspector of Police P.W.7, registered the complaint as Crime Case No.109/1986 and took up the investigation. During the investigation, various letters purported to have been written by the first accused to Ms.Vani were sent to the handwriting expert P.W.3, who gave his opinion regarding the existence of similarities between the specimen writings of the first accused and the disputed writings. Both the first accused and his brother, the second accused, were thereafter chargesheeted and tried for offences punishable under section 420 I.P.C. read with an offence punishable under section 4 of the Act and convicted and sentenced as noticed above.

Mr. P.P.Rao the learned senior counsel appearing for the appellant submitted that the courts below had committed an error in not correctly interpreting the ambit and scope of section 4 of the Dowry Prohibition Act, 1961 read with the definition of `dowry’ under section 2 of the said Act. According to the learned counsel, for “demand” of dowry to become an offence under Section 4 of the Act, it must be made at the time of marriage and not during the negotiations for marriage. Reliance in this behalf is placed on the use of the expressions `bride’ and `bridegroom’ in Section 4 to emphasise that at the stage of pre-marriage negotiations, the boy and the girl are not `bridegroom’ and `bride’ and therefore the `demand’ made at that stage cannot be construed as a `demand’ of dowry punishable under Section 4 of the Act. On merits, counsel argued that reliance placed by the trial court as well as the appellate and the revisional court on various letters purporting to have been written by the first accused was erroneous since the appellant had denied their authorship and there was no satisfactory evidence on the record to connect the appellant with those letters except the “inconclusive” and uncorroborated evidence of the handwriting expert. Mr.Rao further argued that in the present case there was no unimpeachable evidence available on the record to bring home the guilt of the appellant and the failure of the prosecution to examine Ms.Vani and Shri Narsinga Rao was a serious lacuna in the prosecution case. Argued Mr. Rao that the evidence of PW1, the complainant had not received any corroboration at all and since the evidence of PW1 was not wholly reliable, conviction of the appellant without any corroboration of the evidence of PW1 was not justified. Mr. Rao urged that the complainant had exaggerated the case and roped in the appellant, whose elder brother alone had made the demand for dowry, out of anger and frustration and that let alone `demanding dowry’, the first accused was not even a privy to the demand of dowry as made by the second accused, his elder brother.

Learned counsel for the respondent-State, however, supported the judgment of the trial court and the High Court and argued that the case against the appellant had been established beyond a reasonable doubt and that this court need not interfere in exercise of its jurisdiction under Article 136 of the Constitution of India with findings of fact arrived at after appreciation of evidence by the courts below. According to Mr. Prabhakar, the interpretation sought to be placed by Mr. Rao on Section 4 of the Act would defeat the very object of the Act, which was enacted to curb the practice of “demand” or acceptance and receipt of dowry” and that the definition of `dowry’ as contained in Section 2 of the Act included the demand of dowry `at or before or after the marriage’.

The curse of dowry has been raising its ugly head every now and then but the evil has been flourishing beyond imaginable proportions. It was to curb this evil, that led the Parliament to enact The Dowry Prohibition Act in 1961. The Act is intended to prohibit the giving or taking of dowry end makes its `demand’ by itself also an offence under Section 4 of the Act. Even the abetment of giving, taking or demanding dowry has been made an offence. Further, the Act provides that any agreement for giving or taking of dowry shall be void and the offences under the Act have also been made non-compoundable vide Section 8 of the Act. Keeping in view the object which is sought to be achieved by the Act and the evil it attempts to stamp out, a three Judges Bench of this court in L.V. Jadhav vs. Shankar Rao Abasaheb Pawar & Others (1983 4 SCC 231) opined that the expression “Dowry” wherever used in the Act must be liberally construed.

Before proceeding further, we consider it desirable to notice some of the relevant provisions of the Dowry Prohibition Act,1961.

Section 2- `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of person to whom the Muslim Personal law (Shariat) applies.

. . . . . . . . .

. . . . . . . . .

Section 3-Penalty for giving or taking dowry- If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more.

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years(Substituted for the words “six months” w.e.f. 19th November, 1986).

Section-4: Penalty for demanding dowry-if any person demands directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees.

Provided that the Court may, for adequate and special reasons to be mentioned in the judgments impose a sentence of imprisonment for a term of less than six months.”

The definition of the term ‘dowry’ under Section 2 of the Act shows that any property or valuable security given or “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become ‘dowry’ punishable under the Act. Property or valuable security so as to constitute ‘dowry’ within the meaning of the Act must therefore be given or demanded “as consideration for the marriage”.

Section 4 of the Act aims at discouraging the very “demand” of “dowry” as a ‘Consideration for the marriage’ between the parties thereto and lays down that if any person after the commencement of the Act, “demands”, directly or indirectly, from the parents or guardians of a ‘bride’ or ‘bridegroom’, as the case may be, any ‘dowry’, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to Rs.5,000/- or with both. Thus, it would be seen that section 4 makes punishable the very demand of property or valuable security as a consideration for marriage, which demand, if satisfied, would constitute the graver offence under section a of the Act punishable with imprisonment for a term which shall not be less than five years and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry whichever is more.

The definition of the expression ‘dowry’ contained in Section 2 of the Act cannot be confined merely to the ‘demand’ of money, property or valuable security ‘made at or after the performance of marriage’ as is urged by Mr. Rao. The legislature has in its wisdom while providing for the definition of ‘dowry’ emphasised that any money, property or valuable security given, as a consideration for marriage, ‘before, at or after the marriage would be covered by the expression ‘dowry’ and this definition as contained in Section 2 has to be read wherever the expression ‘dowry’ occurs in the Act. Meaning of the expression ‘dowry’as commonly used and understood is different than the peculiar definition thereof under the Act. Under Section 4 of the Act, mere demand of ‘dowry’ is sufficient to bring home the offence to an accused. Thus, any “demand” of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice-versa would fall within the mischief of ‘dowry’ under the Act where such demand is not properly referable to any legally recognised claim and is consideration of marriage. Marriage in this context would include a proposed marriage also more particularly where the non-fulfilment of the “demand of dowry” leads to the ugly consequence of the marriage not taking place at all. The expression ‘dowry’ under the Act must be interpreted in the sense which the Statute wishes to attribute to it. Mr. P.P.Rao, learned senior counsel referred to various dictionaries for the meaning of ‘dowry’, ‘bride’ and ‘bridegroom’ and on the basis of those meanings submitted that ‘dowry’ must be construed only as such property, goods or valuable security which is given to a husband by and on behalf of the wife at marriage and any demand made prior to marriage would not amount to dowry. We cannot agree. Where definition has been given in a statute itself, it is neither proper nor desirable to look to the dictionaries etc. to find out the meaning of the expression. The definition given in the statute is the determinative- factor. The Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is referable to the consideration of marriage. Dowry as a quid pro for marriage is prohibited and not the giving of traditional presents to the bride or the bride groom by friends and relatives. Thus, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression ‘dowry’ mare punishable under the Act.

It is a well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr. Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of ‘dowry’ punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr. Rao that it is only the demand made at or after marriage which is punishable under Section 4 of the Act, Some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other relatives make a ‘demand’ of dowry during marriage negotiations and lateron after bringing the bridal party to the bride’s house find that the bride or her parents or relative have not met the earlier ‘demand’ and call off the marriage and leave the bride house should they escape the punishment under the Act. The answer has to be an emphatic ‘no’. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes.

In Reserve Bank of India Etc. Etc.. vs. Peerless General Finance And Investment Co. Ltd. & Others Etc.. Etc.. (1987) 1 SCC 424 while dealing with the question of interpretation of a statute, this court observed:

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored.

Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.”

Again, in N.K.Jain & Others vs. C.K.Shah & Others(1991) 2 SCC 495 it was observed that in gathering the meaning of a word used in the statute, the context in which that word has been used has significance and the legislative purpose must be noted by reading the statute as a whole and bearing in mind the context in which the word has been used in the statute.

In Seaford Court Estates Ltd. vs. Asher, (1949) 2 All ER 155(CA), Lord Denning advised a purposive approach to the interpretation of a word used in a statute and observed:

“The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have note, provided for this or that, or have been guilty of some or other ambiguity. It would certainly Leave the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

(emphasis supplied) An argument, similar to the one As raised by Mr. Rao regarding the use of the expressions ‘bride’and ‘bridegroom’ occurring in Section 4 of the Act to urge that “demand” of property or valuable security would not be “dowry” if it is made during the negotiations for marriage until the boy and the girl acquire the status of ‘bridegroom’ and ‘bride’, at or immediately after the marriage, was raised and repelled by this court in L.V. Jadhav’s case (supra).

In L.V. Jadhav’s case (supra) while interpreting the meaning of ‘dowry’ under Section 2 of the Act and co- relating it to the requirements of Section 4 of the Act, the Bench observed:

“…….. Section 4 which Lays down that “if any person after the commencement of this Act, demands, directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both”. According to Webster’s New World Dictionary, 1962 edn. bride means a woman who has just been married or is about to be married, and bridegroom means a man who has just been married or is about to be married. If we give this meaning of a bride or a bridegroom to the word bride or bridegroom used in Section 4 of the Act, property or valuable security demanded and consented to be given prior to the time when the woman had become a bride or the man had become a bridegroom, may not be “dowry” within the meaning of the Act. Act. We are also of the opinion that the object of Section 4 of the Act is to discourage the very demand for property or valuable security as consideration for a marriage between the parties thereto. Section 4 prohibits the demand for ‘giving’ property or valuable security which demand, if satisfied, would constitute an offence under Section 3 read with Section 2 of the Act.

There is no warrant for taking the view that the initial demand for giving of property or valuable security would not constitute an offence……… “

Therefore, interpreting the expression ‘dowry and ‘demand’ in the context of the scheme of the Act, we are of the opinion that any ‘demand of ‘dowry’ made before at or after the marriage, where such demand is made as a consideration for marriage would attract the provisions of Section 4 of the Act.

The alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides has always sent stock waves to the civilized society but unfortunately the evil has continued unabated. Awakening of the collective consciousness is the need of the day. Change of heart and attitude is needed. A wider social movement not only of educating women of their rights but all of the men folk to respect and recognise the basic human values is essentially needed to bury this pernicious social evil. The role of the courts, under the circumstances, assumes a great importance. The courts are expected to deal with such cases in a realistic manner so as to further the object of the legislation. However, the courts must not lose right of the fact that the Act, though a piece of social legislation, is a penal statute. One of the cardinal rules of interpretation in such cases is that a penal statute must be strictly construed. The courts have, thus, to be watchful to see that emotions or sentiments are not allowed to influence their judgment, one way or the other and that they do not ignore the golden thread passing through criminal jurisprudence that an accused is presumed to be innocent till proved guilty and that the guilt of an accused must be established beyond a reasonable doubt. They must carefully assess the evidence and not allow either suspicion or surmise or conjectures to state the place of proof in their zeal to stamp out the evil from the society while at the same time not adopting the easy course of letting technicalities or minor discrepancies in the evidence result in acquitting an accused. They must critically analyses the evidence and decide the case in a realistic manner.

It is in the light of the scheme of the Act and the above principles that we shall now consider the merits of the present case. This Court, generally speaking, does not interfere with the findings recorded on appreciation of evidence by the courts below except where there appears to have occurred gross miscarriage of justice or there exist sufficient reasons which justify the examination of some of the relevant evidence by this court itself.

There is no dispute that the marriage of the appellant was settled with Ms. Vani, daughter of PW1 and ultimately it did not take place and broke down. According to PW1, the reason for the brake down of the marriage was his refusal and inability to comply with the “demand” for enhancing the ‘dowry’ as made by the appellant and his brother, the second accused. The High Court considered the evidence on the record and observed”

“From the evidence of PW1 it is clear that it is only the 2nd petitioner that initially demanded the dowry in connection with the marriage of his younger brother, the first petitioner. He alone was present when PW1 agreed to give a cash of Rs. 50,000/- for purchase of car, a house, jewels, clothing and cash valued at rupees one lakh. This took place in the month of June, 1985 when PW1 approached the second petitioner for fixation of date for marriage some time in the month of September, 1985. According to PW1, the second petitioner demanded rupees one lakh for purchase of car. But, however, PW1 persuaded the second petitioner to fix the date leaving that matter open to be decided in consultation with the first petitioner. When the first petitioner came to Hyderabad in October, 1985 PW1 complained to him about the demand for additional dowry and that the first petitioner would appear to have told PW1 that he would discuss with his brother and inform him. Then the first petitioner went to his native place and return to Hyderabad and asked PW1 to give Rs. 75,000/- for purchase of car.

The High Court further observed :

” Thus the demand for dowry either initially or at later emanated only from the second petitioner, the elder brother for the first petitioner. From the evidence it would appear that the petitioners come from a lower middle class family and fortunately the first petitioner was selected for I.P.S. and from the tone of letters written by the first petitioner to Kum. Vani particularly from Ex. P-6 letter it would appear that he was more interested in acting according to the wishes respondent who he probably felt was responsible for his coming up in life. The recitals in Ex.P-6 would show that he did not like to hurt the feelings of the second petitioner and probably for that reason he could not say anything when his elder brother demanded for more dowry. We cannot say how the first petitioner would have acted if only he had freedom to act according to his wishes. But the first petitioner was obliged to act according to the wishes of his elder brother in asking for more dowry. However, I feel that this cannot be a circumstances to exonerate him from his liability from demand of dowry under Section 4 of the Dowry Prohibition Act.

(Emphasis supplied) From the above noted observations, it appears that the High Court felt that the appellant was perhaps acting as “His Master’s Voice” of his elder brother. The High Court accepted the evidence of PW1 to hold that the appellant had demanded enhanced dowry of Rs 75000/ for purchase of car on his return from the native village and had repeated his demand at the him; of “Varapuja” and lateron did not marry Ms Vani as PW1 was unable to meet the demands as projected by the appellant and his elder brother. The High Court appears to have too readily accepted the version of PW1 without properly analyzing and appreciating the same.

Since, PW1 is the sole witness, we have considered it proper to examine his evidence with caution.

From our critical analysis of the evidence of PW1,it emerges that at the time of initial demand of dowry as a consideration for marriage of the appellant it was only the brother of the appellant, the second accused, who was present and it was the second accused alone with whom the negotiations took place in presence of PW2 According to PW1, the brother of the appellant later on demanded rupees one lakh for the purchase of car as against the initial agreement of rupees fifty thousand or the said purpose. Admittedly, the first accused was not present at either of the two occasions. According to PW1 when the appellant came to Hyderabad in October, 1985 he (PW1) complained to him about the demand for a additional dowry made by his brother and the appellant told him that he would discuss the matter with his brother and inform him. It was, thereafter. According to PW1 that then the appellant returned to Hyderabad from his native place that he asked the complainant (PW1) to give Rs.75,000/- for purchase of the car. Shri Narsingh Rao is stated to have been present at that time, but he has not been examined at the trial. The above statement of PW1 has, however, surfaced for the first time at the trial only. These is no mention of it in the first information report, Ex.P-20 or even in the two complaints which had been sent by PW1 to the Director, National Police Academy prior to the lodging of Ex. P-20. PW1 admitted in his evidence “I have not stated in Ex. P-20 and in my 161 statement that A-1 on return from his native place demanded rupees seventy five thousand instead of rupees one lakh for purchase of car and that I said that what was the agreed for purchase of car was only Rs. 50,000/- and not Rs. 75,000/- . This story, therefore, appears to be an after thought, made with a view to implicate the appellant with the commission af an offence under Section 4 of the Act. Had this been the state of affairs, we see no reason as to why the fact would not have found mention at least in the complaints made to ‘the Director of the Academy where the appellant was under-going training. PW1, being a lawyer, must be presumed to be aware of the importance and relevance of the statement attributed to the appellant to incorporate it in the complaints and the FIR. We find this part of the evidence of PW1 rather difficult to accept without any independent corroboration. There is no corroboration available on the record as even Shri Narsingh Rao has not been examined.

According to PW1, the demand of dowry was repeated by the appellant at the time of “Varapuja” which was performed on 31.10.1985 at the house of the second accused also. PW1 stated that he handed over the documents pertaining to the house, rupees fifty thousand in cash and pass book showing the deposit of about rupees fifty thousand in the bank in the name of Ms.Vani to the appellant alongwith other articles of ‘varapuje’and on seeing the documents the appellant flared up and said that since the settlement was for a two storeyed house and not a single storey house, as reflected in Ex.P13, he would cancel the marriage unless the ‘demands’ as made earlier were fulfilled. The story of “varapuja” which has been too readily accepted by the courts below, again appears to us to be of a doubtful nature and does not inspire confidence. The following admission of PW1 in his evidence, in the context of “varapuja” allegedly held on 31.10.1985 has significance :

“It is not true that Varapuja is puja of brideroom according to my understanding. I did not take any prohit for Varapuja. I did not take any photograph on that occasion. I did get any Lagna Patrika prepared for the marriage. It is not true that I am deposing falsely that there was Varapuja and that offered money on that occasion.

I started marriage preparation probably in the month of September, or October, I cannot say on what date I booked hall for the marriage. Ex. P.8 is only cancellation receipt of the marriage hall. I have not got invitation cards printed. I did not write any letters to anybody informing them of the marriage or inviting them to the marriage as I received letter from A-1 to cancel the marriage in the month of October,itself cancellation of the date of marriage was prior to Varapuja.

(emphasis ours) The above admission creates a lot of doubt about the performance of ‘varapuja.’ According to PW1, he had received a letter from the appellant to the marriage in the month of October itself. Therefore, if the marriage had been it does not stand to reason as to why ‘vrapuja’ should have take? place at all. The holding of ‘Varapuja’ appears to be highly improbable. No corroboration of any nature to support this part of the evidence of PW1 is forthcoming on the record.

That the marriage between the parties did not take place is not in dispute but these is no satisfactory evidence on the record to show that the appellant cancelled the marriage on account of non-fulfilment of dowry demand allegedly made by him. The letter which PW1 claims to have himself received from the appellant regarding cancellation of marriage prior to ‘varapuja’ ceremony has not been produced. Reliance instead has been placed by the prosecution on letter Ex P-6 allegedly written by the appellant to Ms.Vani cancelling the date of marriage. We shall refer to the documentary evidence in the latter part of the judgment. The failure of PW1 to produce the letter allegedly received by him from the first accused invites an adverse presumption against him that had he produced the letter, the same would have belied his evidence. The evidence of PW1, who is the sole witness, suffers from serious inconsistencies and exaggerations. He admittedly is the most interested person to establish his case. He is the complainant an the case. It was he who had made two complaints to the Director of National Police Academy against the appellant before lodging the FIR, Ex.P20. He is a lawyer by profession. He would be presumed to know the importance of the ‘demand made by the appellant on the two occasions. He, however, has offered no explanation as to why those facts are conspicuous by their absence from the FIR and the two complaints made to the Director of the Academy. PW1, does not appear to us to be a wholly reliable witness. He has made conscious improvements at the trial to implicate the appellant by indulging in exaggerations and that detracts materially from his reliability. Prudence, therefore, requires that the Court should look for corroboration of his evidence in material particulars before accepting the same. Neither Ms Vani nor Shri Narsingh Rao in whose presence the appellant is said to have demanded dowry have been examined as Witnesses. The failure to examine them is a serious lacuna in the prosecution case. It was Ms. Vani who could have deposed about the circumstances which led to the breakdown of the metrimonial negotiations, before its maturity. Various letter which PW1 produced at the trial were allegedly written by the appellant to the handwriting expert prosecution has sought to corroborate the evidence of PW1 regarding the authorship of those letters. The opinion of PW3,the Assistant Director in the State Forensic & Science Laboratory, Hyderabad, in our view can not be said to be of inching type to attribute the authorship of those letters to the appellant. PW3 during his statement deposed :

“In my opinion (1) there are similarities indicating common authorship between the red enclosed writings marked as S-12 to S-23 and the red enclosed writings marked as Q.4 to Q.7. But definite present standards.(2) No opinion can be given on the authorship of the red enclosed signatures and writings marked as Q-1 to Q-3 and Q-8 to Q- 15 on the basis of present standards.

(emphasis supplied) The expert further opined :

“When all the writing characteristics are considered collectively, they led to the conclusion that there are similarities indicating common authorship between the standard writings marked S-12 to S-25 and the questioned writings marked Q-4 to Q-7. But no definite opinion can be given on the basis of the present standards Extensive admitted writings are required for offering definite opinion.

(emphasis supplied) During his cross-examination PW3 admitted :

“Q. From the available standards you cannot say that the signatures of Exs. P.7 and P.9 is the same person who wrote Exs. P.7 and P.9.

Ans: we can compare truly like live, signatures with signatures and writings with writings and not a signature with a writing.”

Thus, the evidence of PW3, is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering ‘conclusive’ proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration. In Magan Bihari Lal Vs. State of Punjab (AIR 1977 SC 1091), while dealing with evidence of a handwriting expert, this Court opined:

“We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with mare caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra Vs. State of U.P. AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Vs. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Vs. Subodh Kumar, AIR 1964 SC 529 where it was pointed out by this Court that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin Vs. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.”

We are unable to agree, in the established facts and circumstanced of this case, with the view expressed by the courts below that PW1 is a competent witness to speak about the handwriting of the appellant and that the opinion of PW3 has received corroboration from the evidence of PW1. PW1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the appellant. He is not a handwriting expert. The bald assertion of PW1 that he was “familiar” with the handwriting of the appellant and fully “acquainted” with the contents of the letters, admittedly not addressed to him, without disclosing how he was familiar with the handwriting of the appellant, is difficult to accept. Section 67 of the Evidence Act enjoins that before a document can be looked into, it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to ‘relevancy of facts’ provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction. Keeping in view the in-conclusive and indefinite nature of the evidence of the handwriting expert PW3 and the lack of competence on the part of PW1 to be familiar with the handwriting of the appellant, the approach adopted by the courts below to arrive at the conclusion that the disputed letters were written by the appellant to Ms.Vani on the basis of the evidence of PW1 and PW3 was not proper. The doubtful evidence of PW1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert PW3 nor could it receive any corroboration from the opinion of PW3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of PW1 or PW3. The courts below appear to have taken a rather superficial view of the matter while relying upon the evidence of PW1 and PW3 to hold the appellant guilty. We find it unsafe to base the conviction of the appellant on the basis of the evidence of PW1 or PW3 in the absence of substantial independent corroboration,internally or externally, of their evidence, which in this case is totally wanting.

To us it appears that the demand of dowry in connection with and as consideration for the marriage of the appellant with Ms.Vani was made by the second accused the elder brother of the appellant and that no such demand is established to have been directly made by the appellant. The High Court rightly found the second accused, guilty of an offence under Section 4 of the Act against which S.L.P. (Criminal) No.2336 of 1990, as earlier noticed stands dismissed by this court on 15.2.1991. The evidence on the record does not establish beyond a reasonable doubt that any demand of dowry within the meaning of Section 2 read with Section 4 of the Act was made by the appellant. May be the appellant was in agreement with his elder brother regarding ‘demand’ of ‘dowry’ but convictions cannot be based on such assumptions without the offence being proved beyond a reasonable doubt. The courts below appear to have allowed emotions and sentiments, rather than legally admissible and trustworthy evidence, to influence their judgment. The evidence on the record does not establish the case against the appellant beyond a reasonable doubt. He is, therefore, entitled to the benefit of doubt. This appeal, thus,succeeds and is allowed. The conviction and sentence of the appellant is hereby set aside. The appellant is on bail. His bail bonds shall stand discharged.

 

Madras High Court
Ramalingam vs The State Rep. By on 9 March, 2020
                                                                          Crl.A(MD)No.86 of 2015


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                         DATED :     09.03.2020

                                                   CORAM:

                             THE HONOURABLE Mr.JUSTICE M.DHANDAPANI


                                       Crl.A(MD)No.86 of 2015
                                                    and
                                       Crl.A(MD)No.35 of 2016




                 Crl.A(MD)No.86 of 2015


                 1.Ramalingam
                 2.Palanivel
                 3.Anjalai
                 4.Dharmaraj
                 5.Rosappu                           ... Appellants / Accused Nos. 1 to 5



                                                     Vs.

                 The State rep. by
                 The Inspector of Police,
                 Sampattividuthi Police Station,
                 Pudukkottai District                ... Respondent / Complainant

PRAYER: Appeal filed under Section 374(2) of Criminal Procedure Code, against the Judgment and Conviction, dated 24.03.2015 made in S.C.No.89 of 2012, passed by the learned Mahila Judge, Pudukkottai.

http://www.judis.nic.in

                                                                              Crl.A(MD)No.86 of 2015




                 Crl.A(MD)No.35 of 2015


                 Govindasamy                         ... Appellant / Victim


                                                     Vs.


                 1.Ramalingam
                 2.Palanivel
                 3.Anjalai
                 4.Dharmaraj



                 The State rep. by
                 The Inspector of Police,
                 Sampattividuthi Police Station,
                 Pudukkottai District                ... Respondent / Complainant


PRAYER: Appeal filed under Section 372 of Criminal Procedure Code, to set aside the Judgment passed by the Mahila Judge, Pudukottai in S.C.No.89 of 2012, dated 24.03.2015, and award the victim compensation and enhance the punishment to the respondents / accused.

                             For Appellants       : Mr.K.Baalasundharam
                             in Crl.A.86/2015 &
                             Respondents/A1 to A5
                             in Crl.A.35/2016

                             For Appellant in        : Mr.P.Aju Tagore
                             Crl.A..35 of 2016

                             For Respondent          : Ms.S.Bharathi
                             Complainant in            Govt.Advocate (crl.side)
                             both the appeals


http://www.judis.nic.in

                                                                                 Crl.A(MD)No.86 of 2015




                                               COMMON JUDGMENT


The appellants / Accused Nos.1 to 5 in Criminal Appeal No.86 of 2015 were charged and tried before the learned Sessions Judge, Mahila Court, in S.C.No.89 of 2012, and after trial, the Court below found the appellants/A-1 to A-5 guilty and by judgment dated 24.03.2015, convicted and sentenced the appellants as follows:-

                    S.NO.                OFFENCE                       PUNISHMENT
                          1      Under    Section   498(A) 3 years Rigorous Imprisonment and
                                 IPC.,                     fine of Rs.1,000/- each, in default, to
                                                           undergo Rigorous Imprisonment for
                                                           6 months;
                          2      Under    Section   304(B) 7 Years Rigorous Imprisonment
                                 ipc.,
                          3      Under Section 306 IPC., 7 years Rigorous Imprisonment and
                                                         fine of Rs.1000/- each, in default, to
                                                         under     go   1    year    Rigorous
                                                         Imprisonment.



2. The Criminal Appeal No.35 of 2016 has been filed by the appellant / Victim, to set aside the Judgment passed by the Mahila Judge, Pudukottai in S.C.No.89 of 2012, dated 24.03.2015, and award the victim compensation and enhance the punishment to the respondents / accused.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

3. For the sake of convenience the appellants / accused in Crl.A.No.86 of 2015 will be referred to as A-1 to A-5, as arrayed before the trial court.

4. Since the issue involved in both the appeals are on the same set of facts and occurrence, this Court proceeds to dispose of both the appeals by this common Judgment.

5. The case of the prosecution as unfolded from the evidence available on record, is as under :-

(i) On 25.03.2010, the marriage was solemnized between A1 and the deceased Seethalakshmi at Varapur Siva Temple, as per Hindu Rites and Customs. At the time of marriage, the defacto complainant gave 15 sovereigns of gold jewels, instead of 20 sovereigns demanded by A1, household articles and a vehicle viz., “Hero Honda” to the deceased, as ‘Sridhana’. A1 was working as a driver in Tamil Nadu State Transport Corporation at Pudukkottai Branch. All the accused and the deceased were living together as joint family. The accused gave more household works and field works to the deceased and thereby, treated the deceased cruelly.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

(ii) Further, A1 had illicit intimacy with A5, which was questioned by the deceased and A1 responded by saying that deceased was sick person and A1 was made to tie the wedding-knot. All the accused compared the deceased with one Sathiya, insulted, scolded her to die, mentally and physically caused cruelty to the deceased, and on 26.06.2010, the deceased committed suicide, by drowning in the ‘Well’. Thereby, A1 to A5 committed the offence under Section 498(A) IPC. All the accused incited the deceased to commit suicide and thereby, committed the offence under Section 306 IPC.

6. The death of the deceased was informed by A4 / brother of A1, to P.W.2 / brother of the deceased, through phone. Immediately, P.W.1 along with others went to the residence of the deceased. Thereafter, P.W.1 gave the complaint, Ex.P1 on 26.06.2010, at about 3.45 p.m. before P.W.27 / Sub-Inspector of Police, Sampattividuthi Police Station, P.W.27, on receipt of the complaint, immediately registered Ex.17 / FIR, took up investigation and he inspected the spot and prepared observation mahazar. On 26.06.2010, he arrested the accused and their confessions were recorded. Thereafter, the appellants were brought before the Judicial Magistrate, Aranthangi and they were remanded to judicial custody. After investigation, final report has filed against the accused.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

7. The accused were furnished with the relied upon documents u/s 207 Cr.P.C. and the case was committed for trial by framing charges against the appellants for the offence under Sections 498(A)306 and 304(B) IPC., and Section 4 of Dowry Prohibition Act. When questioned, the accused pleaded not guilty.

8. In order to prove the case, on the side of the prosecution 33 witnesses were examined as P.Ws.1 to P.Ws.33 and 25 documents were marked as Exs.P1 to Exs.P25.

9. The Court below, by pointing out the incriminating materials recorded during the course of trial, questioned the appellants under Section 313(1)(b) of Cr.P.C., and the appellants denied the same as false. On the side of the appellants / accused, neither oral nor any documentary evidence were adduced. The trial court, on the basis of the evidence, both oral and documentary, convicted and sentenced the accused as above, aggrieved by which the present appeal has been preferred.

10. The learned counsel appearing for the accused submitted that the appellants did not commit any offence, as alleged by the prosecution. In fact, the marriage of the 1st appellant and the deceased http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 is not in dispute, their marriage was performed on 25.03.2010 and the deceased died on 26.06.2010, by drowning in the well. Initially, P.W.1 made Ex.P1 / complaint before the law enforcing agency. The said complaint did not disclose the commission of offence by the accused persons. P.W.1, simply suspected the death of the deceased and made a complaint.

11. It is further contended by the learned counsel appearing for the accused that investigation was conducted by the Revenue Divisional Officer, under Section 174 Cr.P.C., Further, the RDO enquiry did not reveal anything with regard to dowry demand. Further, the evidence of P.W.1, the father of the deceased finds no corroboration with the evidence of P.W.2 and P.W.3, the brothers and P.W.4 the mother of the deceased. In fact, P.W.1 in his complaint did not disclose the commission of offence by the accused persons and the evidence of P.W.1 is an improved version, which is inadmissible. Even in his evidence, P.W.1 did not disclose that there was cruelty soon before the death of the deceased. However, the law enforcing agency initially registered a case under Section 174 Cr.P.C., but altered the same into one under Section 302 IPC and, thereafter, final report has been filed under Sections 498A and 306 IPC. At the time of framing charge, the Court itself framed an additional charge under Section 304(B) IPC. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

12. It is his further contention that all the ingredients for attracting the offences for which the appellants have been charged is totally different, which have not been fulfilled to establish the case against the appellants. It is the further submission of the learned counsel for the appellants that except the relatives of the deceased, no independent witnesses have been examined with regard to the alleged cruelty meted out to the deceased by the appellants soon before her death and no dowry harassment has also been established through acceptable evidence. In the present case, except the demand of dowry, no other allegation has been made by the prosecution. Even P.W.s 1 to 4, who have been examined to establish the cruelty meted out by the accused persons against the deceased have not deposed anything with regard to the cruelty meted out to the deceased. In the absence of any cruelty or harassment, convicting the accused for the above said offence is not sustainable, accordingly, the learned counsel prayed for allowing the appeal.

13. The learned counsel, invited the attention of this Court to the Judgment of Hon’ble Apex Court in S.S.Chheena Vs. Vijay Kumar Mahajan & Anr. (2010 (12) SCC 190), wherein, it has been held as follows:-

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “26. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, this Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

28. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.”

14. Reliance was also placed on the decision of the Hon’ble Apex Court in Mahesh Kumar Vs. State of Haryana reported in (AIR 2019 SC 802), wherein it has been held as follows:-

9) The first and foremost question that arises in this case, and in respect of the necessary ingredients of Section 304-B IPC, is whether there is a proximate nexus between the death of the deceased with the cruelty or harassment inflicted upon her in respect of the demand of dowry. Section 304-B reads as under:

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub- section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

14) In the present case, the prosecution relies upon the statement of PW3 Sohan Lal – father and PW4 Rajbir – brother of the deceased which has been made basis of conviction by courts below. However, we find that such statements are not sufficient to prove 3 (2004) 11 SCC 291 4 (2015) 5 SCC 201 that the deceased was treated with cruelty relating to demand of dowry soon before her death in the absence of independent evidence though available but not examined. A memorandum Ex.PE/1 dt. 25.01.1992 was relied upon and said to http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 be executed by the in-laws of the deceased in the presence of members of Panchayat. But none of the Panchayat Members have been examined to prove the settlement arrived at. Therefore, the oral statements cannot be relied upon in view of the letters produced by the prosecution.

15) The prosecution also relies upon letter Ex. PF/1 written by the deceased to her father. The letter is to the effect that her in-laws have started hating and suspecting the deceased’s father, therefore, he should not give them the gold chain but only cash. Such letter does not show that anything was demanded by the appellant. The date of sending such letter has not been proved by the prosecution, therefore, it cannot be said that such letter was written soon before her death. Similarly, another letter produced by the prosecution is Ex. PK/1 which is a letter of the deceased to her brother-in-law(sisters-husband) stating that she has no problem with her mother-in-law and sister-in- law but her husband beats her daily. The date of this letter has not been proved nor does such letter lead to any inference for the demand of dowry by the husband of the deceased. Further, an additional letter relied upon by the prosecution is Ex. PG/1 dated 25.05.1992, wherein the deceased has written that she is unhappy and harassed by her in- laws in as much as her mother-in-law does not like the food she cooks. Again, there is no inference of any demand of dowry in such letter as well. Therefore, the documentary evidence in the shape http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 of letters does not support the story of the prosecution.”

15. Assailing the Judgment of lesser conviction passed by the trial Court, Crl.A(MD)No.35 of 2016 has been filed P.W.1, the father of the deceased, seeking enhancement of punishment. Mr.P.Aju Tagore, the learned counsel appearing for the victim / defacto complainant submitted that the evidence of P.Ws.1 to 4 and 7 corroborated with each other and they have implicated the accused in the commission of the offence. It is the submission of the learned counsel that examination of independent witnesses is not necessary and only if a doubt arises in the testimony of the witnesses, who are related to the deceased, then corroboration in the form of independent witnesses is necessary. The evidence of P.W.s 1 to 4 and 7 corroborating each other and is reliable, the courts below have accepted the said evidence and convicted the accused.

16. It is the submission of the learned counsel that P.W.1 in his evidence clearly deposed that immediately after the marriage, the parents of A1 informed that out of 15 sovereigns of gold jewels, which was given to the deceased there is a shortage of half a gram. This, according to the learned counsel, shows not only the crooked mindset of the accused, but also the fact that the demand made by them has not http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 been fulfilled, which has been brought to the notice of P.W.1. Learned counsel for the appellant highlighted various instances of the cruelty meter out to the deceased by the accused, as is relevant from the testimony of P.W.s 1 to 4. P.W.1 has also spoken about the ill-treatment faced by the deceased, where she was made to do agricultural work, of which she had made a complaint to her parents, viz., P.W.s 1 and 3, when she came to her parental home. P.W.1 has also deposed that the deceased was sad that such treatment is being shown to her by the appellants. P.W.2, the brother of the deceased, in his evidence, he clearly deposed that A1 and his family demanded rupees one lakh and 5 sovereigns of gold, as additional demand, and they continued to treat the deceased cruelly, which made the deceased to take the extreme step of committing suicide. The deceased had also informed P.W.2 about the demand made by the parents of A1 for a sum of Rupees one lakh and five sovereigns of gold, which is corroborated by P.W.s 3 and 4. P.W.7, a distant relative of the family of the deceased, had corroborated the evidence of P.Ws. 1 to 4.

17. The learned counsel further submitted that the testimony of P.W.s 1 to 4 clearly reveal that after marriage, all the accused mentally and physically harassed the deceased with regard to the lesser ‘Sridhana’ brought by the deceased along with her. Further, the evidence also reveals that cruelty was caused by the accused http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 demanding additional dowry of Rs.1,00,000/- and five sovereigns of gold from the deceased. Though the deceased had informed the same to P.W.s 1 to 4, however, they had pacified her, but unable to bear the torture meted out to her by the appellants, she had taken the extreme step of ending her life by drowning in the well.

18. It is the further submission of the learned counsel that though the prosecution, through cogent, convincing and corroborative testimony have proved all the ingredients necessary for the offence u/s 498A, 306 and 304B, however, the court below has not appreciated the cruelty faced by the deceased, which has led to her committing suicide even within a period of three months from marriage. It is the submission of the learned counsel that the cruelty had been to such an extent that the deceased was forced to commit suicide, which is nothing but a form of inducement on the part of the appellants and, therefore, the trial court ought to have considered the same while sentencing the appellants, which it failed to do by giving only lesser sentence, which requires to be enhanced by this Court.

19. In support of his contention, reliance was placed on the Judgment of the Hon’ble Supreme Court in Raja Lal Singh Vs. State of Jharkhand (2007 Crl. L.J 3262), in which it has been held as follows:-

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “17. It has been held in Satvir Singh (supra) that the essential components of Section 304-B are : (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage.

(ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. In the present case, Gayatri died about 7 months after her marriage in April, 2000. Also, it has come in evidence that she had been harassed for dowry 10 or 15 days before her death. This has come in the evidence of her father PW5 and brother PW3 and we see no reason to disbelieve them. She had earlier also been subjected to harassment on account of demand for dowry when she had gone to her parents’ house in August, 2000, as has come in the evidence of PW5 Dashrath Singh. Thus, in our opinion, the ingredients of Section 304-B IPC are satisfied in this case [see also in this connection T.

Aruntperunjothi vs. State (2006) 9 SCC 467] .

18. It may be mentioned that the words “soon before her death” do not necessarily mean immediately before her death. As explained in Satvir Singh (supra), this phrase is an elastic expression and can refer to a period either immediately before death of the deceased or within a few days or few weeks before death. In other words, there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

19. In the present case, we are of the opinion that there is a clear nexus between the death of Gayatri and the dowry related harassment inflicted on her. As mentioned earlier, even if Gayatri committed suicide, S. 304-B can still be attracted. A person commits suicide in a fit of depression due to extreme unhappiness. Thus, even if Gayatri committed suicide, it was obviously because she was extremely unhappy, and unless her husband gave a satisfactory alternative explanation for the suicide we have to take it that it was the persistent demand for dowry which led to her suicide. It is evident from the evidence that Gayatri’s father was a poor man and he did not have the money to give the dowry immediately and he wanted time up to January, 2001 so that he could collect some funds from somewhere, but the appellant, Raja Lal Singh was heartless and he wanted immediate compliance of his demand. Since that was not fulfilled, he either killed Gayatri or harassed her so much that she was driven to suicide on account of the said dowry demand. The writing on Gayatri’s palm is, in our opinion, not very relevant. In view of the above, we dismiss the appeal of Raja Lal Singh.”

20. Attention of this Court was also drawn to the Judgment of the Hon’ble Supreme Court in Sharad Vs. State of Maharashtra reported in (2012 Crl. L.J 2170) in which it has been held as follows:- http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “5. We find no merit in the submission and, in our view, the decisions relied upon by the counsel have no application to the facts of this case and do not advance the case of the present Appellant in any way. PW.1 in his deposition before the court said that Savita last came to them to see her ailing father just two days before committing suicide. In that visit also she told her father that unless he paid Rs. 5,000/-, she would not remain alive and it would be the end of her life. The following day, she left her father’s place and went to her matrimonial home and in the evening of the same day she committed suicide. PW.3, who was one of the neighbours of Savita’s parents, said that Savita came to see her ailing father on a Sunday and she went back on Monday. She had then told her that her father was ill and the accused were demanding dowry and ill-treating her. She also told her that she would not remain alive thereafter. On the next day, they got the message that Savita died due to burn injuries. We find it difficult to imagine a more proximate link between harassment and cruelty in connection with the demand of dowry and the death of the victim resulting from it.”

21. Reliance was also placed on the Judgment of the Hon’ble Supreme Court in Kulwant Singh and Others Vs. State of Punjab reported in (2013 (2) SCC (Cri) 339) wherein it has been held as follows:-

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “30. The second contention urged by the appellants also does not merit any serious consideration. It is true that in the FIR Sukhdev Singh did not give any specific instance of the demand for dowry made by the appellants but he did categorically mention that there was a demand for more dowry by the appellants. Apart from the statement in the FIR, both the Courts have considered the overwhelming evidence of several prosecution witnesses to the effect that there was a demand for dowry made by the appellants and concurrently held that the appellants had made a demand. We do not see any reason to interfere with this finding of fact.

37. Finally, reference was made to Vipin Jaiswal v. State of Andhra Pradesh, 2013 (3) SCALE 525 which also has no relevance to the present case since in that case the ingredients of harassment or cruelty had not been made out. Vipin Jaiswal’s wife committed suicide and left behind a note to the effect that nobody was responsible for her death and that her parents and family members had harassed her husband and it is because of this that she was fed up with her life and the quarrels taking place.

38. There is no doubt that insofar as the present case is concerned, Rachhpal Kaur was harassed by her husband and in-laws for dowry and that she died under abnormal circumstances due to aluminium phosphide poisoning. In our opinion, http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 there is sufficient evidence to hold the appellants guilty of offences punishable under Section 304-B of the IPC and 498-A of the IPC. We see no reason to disturb the conclusions concurrently arrived at by both the Courts below.”

22. In support of his contention, reliance was also placed on the Judgment of the Hon’ble Supreme Court in Jatinder Kumar Vs. State of Haryana (AIR 2020 SC 161), in which it has been held as follows:-

“9. So far as present appeal is concerned, the depositions of the prosecution witnesses about torture and demand for dowry made by the appellant have been believed by the Trial Court as also the High Court. Barring the stray remark by P.W.2, both P.W.1 and P.W.2 have narrated facts which would constitute demand for dowry as also inflicting cruelty and torture upon the deceased victim. Such consistent stand of these two witnesses cannot be said to have been overshadowed by the above-referred stray statement of P.W.2 which is not in tune with rest of his deposition. As regards the appellant, it is a finding on fact upon proper appreciation of evidence. We do not find any major contradiction in the statements made by P.W.1 and P.W.2 on demand for dowry and subjecting the deceased victim to cruelty. They stuck by their statements in cross-

examination. From their depositions, a link can be established between such acts of the appellant and http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 death of the deceased victim. Once these factors are proved, presumption rests on the accused under Section 113-B of the Indian Evidence Act, 1872. The appellant in his statement made in response to his examination under Section 313 of the Code of Criminal Procedure, 1973 attributed suicide of the victim to depression on account of several of her relatives’ deaths within a short spell of time. Though the factum of several deaths in her family has been established, there is no corroboration of such a depressive state of mind of the deceased. The other defence of the appellant is that she was a modern urban lady and could not adjust to the life style of Mullana, a small town where her matrimonial home was situated. But both the Trial Court and the High Court rejected this defence. We find no reason to reappreciate evidence on this aspect. Father of the deceased, as also P.W.2 have proved the demand for dowry. This version has run consistently from the statement forming the basis of F.I.R. to deposition stage and we do not think the Trial Court and High Court had come to such conclusion in a perverse manner.

10. It is also argument of the appellant that since on the basis of same set of evidences, the co- accused persons were acquitted, the appellant only for the reason of being husband of the deceased could not be subjected to a different standard or yardstick in the guilt finding process. The High Court has given the following reasoning for letting off the co-accused persons:-

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 “23. The next question, that arises for consideration is, as to which of the accused, could be said to have tortured Meenakshi, continuously, in connection with the demand of dowry, aforesaid leading to her death. It has come in the evidence, that Anil Kumar, and Atul Mittal, brothers of Jatinder Kumar, were living separately, from him. They had their separate mess, and business. It has come in the evidence, that Bimla Wanti, mother of Jatinder Kumar, was residing with her son Atul Mittal, who was unmarried, at that time. Under these circumstances, the only beneficiary, of the cash amount, for the purchase of car, or for extension of clinic, in the shape of dowry, could be said to be to the Jatinder Kumar, accused husband of deceased Meenakshi. A married brother, Atul Mittal, unmarried brother, and Bimla Wanti, mother of Jatinder Kumar, were not be benefitted, either on account of the demand of car, in the shape of dowry, or, on account of demand of cash, for the extension of clinic. It is matter of common knowledge that, when the bride dies, in the house of her in-laws, under unnatural circumstances, then no love is lost between the parents of the deceased, and members of her in-laws family. In such a situation, the parents of the deceased are out and out, to rope in, as many members of the in- laws family of the bride-groom, as they could possibly do. The evidence of Som Prakash, complainant, Bharat Bhushan, paternal uncle of the deceased, and Parveen Kumar, mediator, that the accused, other than Jatinder Kumar, used to torture Meenakshi, in connection with the demand http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 of dowry, as a result whereof, she died, could not be said to be reliable. The basis of omni-bus allegations, against Bimla Wanti, Atul Mittal, and Anil Kumar, that they subjected Meenakshi to cruelty, in connection with the demand of dowry continuously, until her death, they could not be convicted. It appears that, Anil Kumar, Bimla Wanti, and Atul Mittal, were falsely implicated, in the instant case, with a view to exaggerate the number of the accused. Only Jatinder Kumar, committed the offences, punishable under Sections 304-B and 498-A of the Indian Penal Code. Out of abundant caution, Anil Kumar, Bimla Wanti, and Atul Mittal, accused, are required to be given the benefit of doubt, and, thus, are entitled to acquittal. The findings of the trial court, only to the extent aforesaid are affirmed.”

11. We are not testing the legality of acquittal of the co-accused persons in this appeal. On the basis of the evidence on record, we are satisfied that the judgment and order of conviction and sentence was rightly confirmed by the High Court so far as the appellant is concerned. The factors which the High Court found for convicting the appellant, in our opinion, establishes guilt of the appellant beyond reasonable doubt. We find no reason to interfere with the judgment and order under appeal. The appeal is dismissed. We are apprised that appellant, at present, is on bail. The appellant’s bail bond stands cancelled. Let the appellant surrender before the Trial Court within http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 four weeks from date and undergo rest of the sentence.”

23. Ms.S.Bharathi, the learned Government Advocate (crl.side) appearing for the State supported the Judgment of conviction of the trial Court and submitted that the trial court, on proper appreciation of the evidence tabled by the prosecution has rightly convicted the accused and the findings arrived at by the trial Court are just and proper, which need not be interfered with. Hence, prayed for dismissal of the appeals.

24. I have heard the learned counsel appearing for the respective appellants and the learned Government Advocate (Crl. Side) appearing for the respondent and perused the materials available on record.

25. The issues that arise for consideration in the present appeals are as follows:

                                    1.    Whether   necessary        ingredients     of
                               Sections    304B     306,      498A      IPC   stand
                               established?
                                    2. Whether there is proximate nexus

between the death of the deceased in relation to the cruelty or harassment inflicted upon the deceased by demand of dowry by the accused?

3. Whether the conviction of the trial Court and the consequent sentence could be http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 sustained or does the sentence requires further enhancement?

26. One of the grounds on which the conviction is assailed by the accused relate to the satisfaction of the ingredients in Sections 498(A)306 and 304(B) IPC. For better clarity, the said Sections 498(A)306 and 304(B) IPC., are extracted hereunder:-

Section 498-A – Husband or relative of husband of a woman subjecting her cruelty – Whoever, being the husband or 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 purpose of this section, ‘cruelty’ means-

(a) any willful 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 a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of any person related to her to meet such demand.”

Section 306 – Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 Section 304B – Dowry death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation – For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.’

27. What flows from the above provisions of law is that the death of the victim should have been the result of cruelty or harassment by her husband or relatives and that there should have been coercion for the victim to commit suicide and that should be in relation to demand for property and that the said cruelty and harassment caused and demand made should be soon before the death of the woman so as to drive her to commit suicide. The above are the necessary ingredients that forms the scope and ambit of Sections 498-A306 and 304 (B) IPC. Further, the above sections also mandate the punishment that are to be awarded for the commission of the said offences. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

28. In the above backdrop of the necessities contemplated in Sections 498-A and 304 (B) IPC, being that soon before death, the deceased should be inflicted with cruelty and that there should be demand for dowry or property / valuable security, this Court is tasked with an analysis to find out whether the ingredients as contemplated above have been satisfied.

29. P.W.1, the father of the deceased, in his evidence, has deposed that since he had suspicion in the death of his daughter, he had lodged the complaint, Ex.P-1, with the law enforcing agency. The earliest document, therefore, is Ex.P-1. A perusal of Ex.P-1 reveals that there is no whisper as to the demand for dowry or as to any cruelty or harassment meted out to the deceased, by the accused. The complaint merely proceeds on the footing requesting the law enforcing agency to investigate the death of the deceased. However, P.W.1, in his evidence, has deposed that his daughter was subjected to cruelty and harassment at the hands of the accused, who had demanded a sum of Rupees one lakh and five sovereigns of gold, as additional dowry. Further, the deposition of P.W.1 also reveals about the ill-treatment meted out by the accused to the deceased on various occasions. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

30. A conjoint reading of Ex.P-1 and the evidence of P.W.1 reveals that nowhere in Ex.P-1, P.W.1 had spoken anything about the cruelty and harassment caused to the deceased by the accused. Therefore, the deposition of P.W.1 with regard to cruelty and harassment and also the demand for additional dowry is not only at variance with his earliest version as found in Ex.P-1, complaint, but it is definitely an improvement from the version given in Ex.P-1. It is true that the evidence of P.W.1 gains corroboration from the deposition of P.W.2 also with regard to the demand of gold and money, and similarly, P.W.s 3 and 4 have also corroborated the testimony of P.W.1, however, the testimony of P.W.1 itself being at variance with Ex.P-1, and no cruelty or harassment having been attributed to the accused in Ex.P-1, the deposition of P.W.1 as also the corroboration of his evidence by P.W.s 2 to 4 is prone to serious doubt. Further, P.W.s 1 to 4 have not testified as to the steps taken by them to clarify with the accused as to the cruelty and harassment complained of by the deceased.

31. One other crucial evidence, which flows from the evidence of P.W.2 is the fact that the day before the death of the deceased, P.W.2 had contacted the deceased over phone and had enquired about her welfare for which the deceased had replied that she is fine. The above testimony of P.W.2 categorically reveals that soon before her death, http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 there has not been any complaint made by the deceased as to the cruelty and harassment meted out to her, by the accused.

32. Further, it is to be pointed out that the testimonies of P.W 4 and P.W.7 is at variance and does not corroborate each other. P.W.7, according to the prosecution, is stated to be a distant relative of P.W.1. In his evidence, P.W.7 has deposed that there was illegal intimacy between the father-in-law and A-5, but curiously, the said testimony has been contradicted by P.W.2 deposing that the illegal relationship was between A-1 and A-5. Further, it is to be pointed out that nowhere in the testimonies of P.W.s 1 to 4, they have stated anything about there being illegal intimacy between any of the accused. There is no averment to the said fact of illegal intimacy in the complaint, Ex.P-1. Further, even if there had been any illegal intimacy between the father- in-law of the deceased and A-5, that would in way be said to be cruelty or harassment meted out to the deceased. Therefore, it is categorically clear that the necessary ingredients as contemplated u/s 498-A and 304 (B) IPC have not been established.

33. Further, it is to be pointed out that no independent witnesses have been examined by the prosecution with regard to the offences u/s 304 (B) and 498-A. Though, it is trite that it is not necessary for the prosecution to examine any independent witnesses and that the http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 testimonies of related witnesses would be suffice, however, a rider is attached to the same, in that the testimonies of the related witnesses should be of such a nature so as to foreclose all the possibilities of bias and tampering. In the case on hand, the prosecution has miserably failed to prove the charges u/s 498-A and 304 (B) IPC through the testimonies of P.W.s 1 to 4, whose evidence, to put it more precisely, could only be stated to be a parrot-like version, implicating the accused in the commission of the crime. Their evidences could not in any way form the basis of the conviction u/s 498-A and 304 (B) IPC. Once the evidence of P.W.s 1 to 4 are discarded, the prosecution is left with no other evidence to project the commission of offences on the accused.

34. It is true that as per Section 113-B of the Indian Evidence Act, 1872, the presumption of dowry death can be raised on 4 circumstances i.e., (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 (4) Such cruelty or harassment was soon before her death.”

35. In the present case, as stated above, the testimonies of P.W.1 to P.W.4 and P.W.7 not only in any way corroborates each other, but also falls short of fulfilling the ingredients contemplated u/s 498-A and 304 (B) IPC. There is no iota of evidence to hold that the deceased was subjected to cruelty or harassment soon before her death. Once the prosecution fails to establish the fact that there was any cruelty or harassment soon before her death, the presumption required under Section 113 of the Indian Evidence Act does not arise.

36. Though very many decisions have been relied on by the learned counsel appearing for the appellant/P.W.1, however, the same are not applicable for the simple reason that in those cases, harassment and cruelty were established through testimonies of independent evidences. However, in the case on hand, not only the testimonies of the related witnesses, viz., P.W.s 1 to 4 and 7 falls short of conviction, but equally, there being no independent witness examined to prove the said fact and there being no corroboration in the testimonies of P.W.s 1 to 4 and 7, this Court is left with no other alternative to hold that the prosecution have miserably failed to prove the offences u/s 498-A and 304 (B) IPC.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

37. It is further to be pointed out that in the enquiry conducted by the Revenue Divisional Officer under Section 174 Cr.P.C., and who has filed Ex.P-24, his report, the Revenue Divisional Officer has clearly stated that there is no dowry demand. Though the said report, Ex.P-24, is not a substantial piece of evidence, however, the said report gains strength from Ex.P-1, complaint, which does not disclose any harassment or cruelty and dowry demand and, therefore, the said report can be relied upon as a corroborating piece of evidence.

38. It has been time and again held by the Hon’ble Supreme Court that instigation is a necessary concomitant for an offence u/s 306 IPC. The instigation should be of such a nature so as to urge, provoke, incite and encourage the victim to do a particular act. There should be an intention to provoke, incite or encourage a person to do a particular act, which alone would form the necessary ingredient of abetment. Abetment involves mental process of instigating a person or intentionally aiding a person in doing a thing and without there being a positive act on the part of the accused in instigating the victim to commit suicide, the offence u/s 306 IPC does not stand attracted. The act of the accused should be of such a nature in order to drive the victim to commit suicide.

http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

39. The deposition of P.W.2, as stated above, clearly reveals that the preceding day, P.W.2 had a telephonic talk with the deceased and on enquiry, the deceased had told him that she was fine. Such being the case, it is incumbent on the prosecution to prove that things have happened in the interregnum between the time of telephone call of P.W. 2 and the deceased committing suicide and that thing was the act of the accused in inflicting cruelty and harassment on the deceased, which had driven her to take the extreme step of committing suicide. However, to state without any ambiguity, the prosecution has not placed any evidence before this Court to even infer that there was some happening, which had caused the deceased to resort to the extreme step.

40. On a careful analysis of the entire materials available on record coupled with the legal position relating to law on Sections 498- A, 306 and 304 (B) IPC is concerned, this Court is of the irrefutable view that the prosecution has miserably failed to prove the culpability of the accused in the commission of the offence and the evidence tabled by the prosecution falls short of establishing the guilt of the accused. The trial court has not considered the evidence in proper perspective and has convicted the accused and sentenced them as above, which requires interference at the hands of this Court. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015

41. For the reasons aforesaid, the Criminal Appeal (MD)No.86 of 2015 is allowed setting aside the Judgment and Conviction, dated 24.03.2015 made in S.C.No.89 of 2012, passed by the learned Mahila Judge, Pudukkottai, and the accused/appellants are acquitted of all the charges for which they are convicted and sentenced. Bail bonds executed by them shall stand discharged. Consequently, the Criminal Appeal (MD)No.35 of 2016 filed for enhancement of sentence by the victim is dismissed.

                                                                              09.03.2020

                 Index         : Yes / No
                 Internet      : Yes / No
                 MPK




http://www.judis.nic.in

                                                                  Crl.A(MD)No.86 of 2015




                 To

                 1.The Mahila Judge,
                   Pudukkottai.

                 2.The Inspector of Police,
                   Sampattividuthi Police Station,
                   Pudukkottai District

                 3. The Additional Public Prosecutor,
                    Madurai Bench of Madras High Court,
                    Madurai.

                 4.The Record Clerk,
                   Vernacular Section,

Madurai Bench of Madras High Court, Madurai. http://www.judis.nic.in  Crl.A(MD)No.86 of 2015 M.DHANDAPANI, J.

MPK JUDGMENT MADE IN Crl.A(MD)No.86 of 2015 and Crl.A(MD)No.35 of 2016 09.03.2020 http://www.judis.nic.in

dowry demand has to be in relation to marriage

Excerpt:

the definition of ‘dowry’ under Section 2 of the Act, 1961 mere demand thereof would not be an offence under Section 4 of the Act, 1961. It should either be given or agreed to be given at or before or after the marriage in connection with the marriage. Although in common parlance one very often uses the term “dowry demand” in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet this will not amount to demand for dowry under the Act, 1961 in view of the definition of dowry contained in Section 2 of the Act, 1961.

41. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to property of valuable security given or agreed to be given at or before or after the marriage.

It is also settled principle of the Apex Court in a catena of decisions time and again that right to live is a fundamental right guaranteed to a citizen under Article 21 of the Constitution of the India. Therefore, the Court should cautious while recording conviction against accused which would defeat the said right guaranteed to the citizens under Article 21 of the Constitution of India. The Courts should record conviction in the event of prosecution proving the offence beyond reasonable doubt.

 

 

Telangana High Court
M. Sudarshan Goud, 2 Others, vs The State Of Ap Ep By Its Pp Hyd., on 24 April, 2020
Bench: K.Lakshman
    IN THE HIGH COURT FOR THE STATE OF TELANGANA
                   AT: HYDERABAD

                                   CORAM:

              * THE HON'BLE SRI JUSTICE K. LAKSHMAN

                   +CRIMINAL APPEAL No.1284 OF 2008


% Delivered on: 24-04-2020


Between:

# M. Sudarshan Goud & 2 others                                .. Appellants

                                       Vs.

$The State of Telangana, rep.by its Public Prosecutor         .. Respondent


! For Appellants                        : Mr. K. Surender

^ For Respondent                        : Public Prosecutor


< Gist                         :


> Head Note                    :


? Cases Referred               :

   1.   1991 Crl.L.J. 639 (Cal)
   2.   (2005) 2 SCC 388
   3.   (2010) 12 SCC 350
   4.   (2004) 3 SCC 199
   5.   (1996) 4 SCC 596
   6.   (2014) 4 SCC 129
   7.   (2015) 6 SCC 477
   8.   (2015) 6 SCC 465
   9.   2004 (1) ALD (Crl.) 642 (SC)
                                      2
                                                                               KL,J
                                                             Crl.A. No.1284 of 2008


            THE HON'BLE SRI JUSTICE K. LAKSHMAN

                  CRIMINAL APPEAL No.1284 OF 2008

JUDGMENT:

Assailing the judgment, dated 14.10.2008, passed by the V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad in Sessions Case No.253 of 2008, the appellants – Accused Nos.1, 2 and 4 preferred the present appeal.

2. Vide the aforesaid judgment, the trial Court convicted the appellants – accused Nos.1, 2 and 4 for the offence under Section 4 of the Dowry Prohibition Act, 1961 and imposed sentence of simple imprisonment for a period of six (06) months each and to pay fine of Rs.10,000/- each and in default of payment of fine to undergo simple imprisonment for a period of three (03) months each.

3. It is relevant to note that originally Narayanaguda Police Station, Hyderabad charged accused Nos.1 to 5 for the offences under Sections 498- A and 306 IPC. The trial Court framed charges under Sections 498-A and 306 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (for short ‘Act, 1961’). Vide the aforesaid judgment, the trial Court acquitted accused Nos.1 to 5 for the offences under Sections 498A and 306 IPC and Section 3 of the Act, 1961. The trial Court also acquitted accused Nos.3 and 5 for the charge under Section 4 of the Act, 1961.

4. According to the prosecution, on 26.07.2007 at about 12.00 noon, a Telugu written report was filed by the complainant (Accused No.1) stating that on 25.07.2007 at about 16:30 hours, his wife (deceased0 locked the house and handed over the keys to one Latha by informing her that she was KL,J Crl.A. No.1284 of 2008 going to purchase vegetables. Thereafter she did not return. The complainant searched for his wife in the house of his relatives, but could not trace her out.

5. Basing on the said complaint, Narayanaguda Police Station registered a case in Crime No.276 of 2007 under the head ‘Woman Missing’.

6. According to the prosecution, on 27.07.2007 at about 9.00 a.m., PW.6, Supervisor of St. Anthony’s High School, Himayathnagar, came to the Police Station, Narayanaguda and informed that he found female dead- body in Ashoknagar Drainage Nala situated behind their school. The police rushed to the spot and got the dead body removed from the Canal. Thereafter, PW.11, Sub-Inspector of Police, secured the presence of Accused No.1 and got the dead body identified as that of his wife.

7. According to the prosecution, on 27.07.2007 at about 8.00 p.m., a Telugu written report was lodged by the father of the deceased alleging that the marriage of the deceased was performed with accused No.1 on 20.03.1992 with dowry of Rs.10,000/-, one and half tolas of gold and 10 tolas of silver. The couple lived happily till they were blessed with one son. Thereafter, all the accused started harassing the deceased for additional dowry. During the marriage of sister of the deceased, her in-laws demanded additional dowry and did not attend the marriage. In that regard, the complainant (father of deceased) made several attempts to pacify the matter. He has also promised to arrange the amount from his retirement benefits. But, there is no change in the attitude of the accused and they have KL,J Crl.A. No.1284 of 2008 continued the said the harassment demanding additional dowry. As such, the deceased attempted to suicide by pouring kerosene on her body.

8. It is also alleged in the complaint that the complainant gave an amount of Rs.50,000/- to accused No.1 from his retirement benefits. But, after few months, the accused viz., husband, mother-in-law, sister-in-law, her husband and brother of accused No.1 again started harassing the deceased for additional dowry. On 25.07.2007 at about 19.00 hours, the complainant was informed by accused No.1 that his daughter (deceased) was not available at the house and her whereabouts were not known. On that, he searched for her but could not trace her out. On 27.07.2007, he received message from accused No.1 that the dead body of the deceased was found lying in a nala of Ashok Nagar. On that, the complainant and his family rushed to the spot and identified the dead body.

9. Basing on the said complaint and statement of the father of the deceased, the police altered the provision of law from Section 174 Cr.P.C. to Sections 498-A and 306 IPC.

10. After completion of investigation, the police laid charge sheet against accused Nos.1 to 5 i.e., husband, mother-in-law, husband of sister- in-law, sister-in-law and brother-in-law of the deceased under Sections 498- A and 306 IPC.

11. The trial Court after completion of required formalities and basing on prima facie material available, framed the charges for the offences under Sections 498-A and 306 IPC and Sections 3 and 4 of the Act, 1961.

KL,J Crl.A. No.1284 of 2008

12. The accused pleaded not guilty for the said charges and prayed the trial Court to proceed with trial.

13. During trial, the prosecution has examined as many as 11 witnesses, viz., PWs.1 to 11 and marked documents as Exs.P1 to P9. No oral evidence was adduced by the accused, however, marked the documents Exs.D1 to D4.

14. On completion of trial, the trial Court vide the impugned judgment, acquitted accused Nos.1 to 5 for the charges under Sections 498- A and 306 IPC and Section 3 of the Act and accused Nos.3 and 5 for the charge under Section 4 of the Act, 1961, while convicted accused Nos.1, 2 and 4 for the charge under Section 4 of the Act, 1961.

15. Aggrieved by the said conviction and imposition of sentence of imprisonment, the appellants – accused Nos.1, 2 and 4 preferred the present appeal.

16. It is relevant to note that neither the State nor the de facto complainant preferred any appeal challenging the impugned judgment acquitting accused Nos.1 to 5 for the charges under Sections 498-A and 306 IPC and accused Nos.3 and 5 for the charge under Section 4 of the Act, 1961.

17. Heard Mr. K. Surender, learned counsel for the appellants – accused Nos.1, 2 and 4, and the learned Public Prosecutor for the respondent.

KL,J Crl.A. No.1284 of 2008

18. In view of the aforesaid fact-situation, the only question that falls for consideration before this Court is:

(i) Whether the conviction recorded by the trial Court under the impugned judgment against the appellants

– accused Nos.1, 2 and 4 for the charge under Section 4 of the Act, 1961 is sustainable, both on facts and in law.

(ii) If not, to what relief they are entitled?

19. Impugning the judgment, the learned counsel for the appellants has raised an important legal issue. It is the contention of the learned counsel for the appellants that Section 4 of the Act, 1961 deals with penalty for demanding dowry, and as per which, if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupee: provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.

20. It is also contended by the learned counsel for the appellants that Section 2 of the Act, 1961 deals with definition of “dowry”, and as per which, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of KL,J Crl.A. No.1284 of 2008 the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation – I to the said section was omitted. However, explanation – I refers the expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

21. By referring the said provision, the learned counsel for the appellants would contend that by way of amendment vide Act No.63 of 1984 w.e.f. 02.10.1985 the words “in connection with the marriage of the said parties, but does not include” are added and, therefore, the alleged demand of dowry should be in connection with the marriage of parties to attract punishment under Section 4 of the Act. It is his further contention that by virtue of the above said amendment, the Parliament in its wisdom has incorporated the words “in connection with the marriage of the said parties’ in the definition of ‘dowry’ defined under Section 2 of the Act, 1961.

22. By referring the above said two provisions of the Act i.e., ‘dowry’ and ‘penalty for demanding dowry’, the learned counsel for the appellants would submit that none of the witnesses deposed before the trial Court that the appellants – accused Nos.1,2 and 4 demanded the dowry in connection with the marriage of said parties. According to him, the marriage of accused No.1 with the deceased was held on 20.03.1992 and he is none other than nephew of father of the deceased. According to him, even as per Ex.P1 – complaint dated 27.07.2007 lodged by PW.1 (father of the deceased) that the said marriage was an arranged one and at the time of marriage, he has fulfilled all the formalities including providing an amount of Rs.10,000/-, 1½ toals gold and 10 toals of silver towards dowry.

23. It is further stated by PW.1 in the complaint that after marriage till they blessed with a son, accused have taken care of the deceased. Thereafter, accused have started harassing the deceased demanding additional dowry. He would further contend that it is also mentioned in Ex.P1 – report that the marriage of second daughter of PW.1 was settled and he went to the house of accused to invite them to his second daughter’s marriage. Then the accused demanded him to give dowry for attending the marriage of his second daughter and the accused have also informed PW.1 that they would attend the marriage only in the event of paying additional dowry as was agreed to give to the second daughter of PW.1 or else they would not attend. Upon which, PW.1 requested the accused that he was not in a position to meet the said demand and requested them that he would pay some amount from his retirement benefits and requested them to attend the marriage. But, the accused did not attend the marriage. On the other hand, they have aggravated the deceased to further harassment and the deceased attempted to commit suicide once. It is also stated in Ex.P1 that PW.1 has retired and he has paid an amount of Rs.50,000/- to accused No.1 with a request to take care of the welfare of his daughter. According to PW.1, both accused No.1 and the deceased were lived happily for some time, but the accused again started harassing the deceased.

24. As per Ex.P1, on 25.07.2007, accused No.1 called the son of PW.1 i.e., PW.2 at about 7.00 p.m. and informed about missing of the deceased and enquired about whereabouts of the deceased. Thereafter, PW.2 informed PW.1 about the same and they have searched for whereabouts of the deceased, but they could not trace her out. Again on 27.07.2007 at about 9.00 a.m. accused No.1 informed over phone about dead KL,J Crl.A. No.1284 of 2008 body of the deceased found in nala at Ashok Nagar. Thereafter they have reached there and identified the dead body.

25. The learned counsel for the appellants has also referred the deposition of PW.1 which is almost in the same lines of Ex.P1 complaint. The learned counsel for the appellants would also contend that PW.1 in his chief-examination deposed as “A.1 demanded that as much dowry as was agreed to be given to my 2nd daughter should be given to him also.” The learned counsel for the Appellants has also referred the certain admissions of PW.1 during cross-examination which is as under:

“The retirement benefits were also paid through bank. I withdrew the P.F. amount after 3 months of my retirement. I orally informed about the particulars to the police. I did not give any document relating to the payment of Rs.50,000/- to the accused…..”

“It is true that I borrowed Rs.1,00,000/- from one Narasimha Reddy and executed an agreement. But A.3 did not stand as surety for the said loan. The signature shown to me pertains to me. The agreement shown to me, was executed by me. Ex.D.1 is the agreement. It is true that Venkanna who was referred in Ex.D1 is no other than A.3…..”

“It is true that I did not state to the police that A.2 was not willing for the marriage from the beginning, but my brother-in-law was very particular and he also took a promise from me regarding the same. The witness adds that due to the agony for the death of the deceased, we did not state the said fact to the police…..”

“It is true that I stated before the police that before the marriage I managed to provide a plot to A.1 from the Govt. and after the marriage, A.1 gifted the said plot to his sister Hymavathi. The witness adds that even before KL,J Crl.A. No.1284 of 2008 the court his version is the same. It is true that I did not file any document to show that the plot was registered in the name of A.1.”

26. The learned counsel for the appellants would further contend that PW.2, brother of the deceased, also did not depose anything that the accused have demanded dowry in connection with the marriage. He also relied upon the deposition of PW.2 in chief-examination which is as under:

“A.1 expressed that we were giving Rs. one lakh as dowry to our another sister whereas we gave only Rs.10,000/- to him and said that if we give one lakh to him they would attend the marriage. In spite of promise of P.W.1 to give some money after the retirement, they failed to attend the marriage. They have continued the harassment. On one occasion the deceased attempted suicide. P.W.1 retired in January, 2006 and we gave Rs.50,000/- in the month of March or April. They lived happily for one month, but again they started harassment. The only son of the deceased was also kept at Moulali in the house of A.4, only in order to harass the deceased. The deceased got mental depression and due to that harassment only the deceased committed suicide.”

27. PW.2 during cross-examination categorically admitted that he has been visiting the house of the accused from the date of marriage till her death and they used to mutually visit their houses on special occasions. They used to attend all the functions mutually. They have also attended a function held for L.W.5 Aravind Goud at the house of accused. PW.1 and A.1 together wore Ayappa mala and went to Kerala. Even prior to the marriage they were related to the accused. The marriage of accused No.5 was performed in 2006 and all of them attended the same. His second sister’s marriage was performed in the year 1998. He has further admitted KL,J Crl.A. No.1284 of 2008 that accused No.1 performed the funeral of deceased. PW.2 further admitted during cross-examination which is as under:

“I do not remember, whether I stated before the police, that A.1, A.2 and A.4 harassed the deceased for money and that whenever I went to their house, I have taken permission from A.4 and that A.1 expressed that we were giving Rs.1 lakh as dowry to our another sister where as he was given Rs.10,000/- only and that if we give 1 lakh to him they would attend the marriage. The deceased was not taken to any hospital, when she attempted suicide earlier. The witness adds that the matter was settled before the elders.”

28. PW.3, son of the deceased and accused No.1 turned hostile.

29. PW.4, maternal uncle of the deceased also deposed in the same lines as deposed by PW.1 and PW.2. During cross-examination, PW.4 has admitted that they have not given any complaint with regard to the alleged harassment of deceased by the accused. However, he has further admitted that he has advised PW.1 to give a complaint, but PW.1 expressed that as the accused are their relatives, compromise can be affected in the presence of the Corporator. PW.4 did not give any complaint against the accused.

30. PW.5, panch witness, deposed about conducting inquest on the dead body of the deceased in his presence.

31. PW.6, Supervisor in St. Anthony High School, deposed about his finding the dead body in the nala and informing the same to the police.

32. PW.7, neighbour of the deceased, deposed about deceased handing over of keys to her on 25.7.2007 at about 4.00 p.m. and asking her  to hand over the same to her family members whoever comes first. At about 5.00 p.m. accused No.2 came to the house and that she handed over the keys to her. PW.7, during cross-examination, has admitted in the following manner:

“The neighbour of the accused on their left is one Mallesh, and one Dubba Raj is the neighbour on their right. I have been residing in Basheerbagh in the said locality since 5 yrs. Myself and the deceased are acquainted with each other and all on visiting terms. So far as I know, the deceased was living happily with the accused. A.1, A.5, and their other Brother Ramesh reside separately though in the same premises. A.2 resides along with A.5. The family members of the deceased and her relatives used to visit the house of the deceased, and the accused also used to attend the functions in the house of the parents of the deceased. P.W.3 used to reside along with A.1 while the deceased was alive. The deceased used to take him to the school every day.”

33. PW.11, S.I. of Police, Narayanaguda Police Station admitted in his cross-examination that he did not collect any document of plot which was stated by PW.1 and to show that accused No.1 gifted plot to his sister and so also he did not collect any document for gold and other articles given at the time of marriage. PW.11 further admitted that PW.1 did not state before him that accused No.2 was not willing for marriage but his brother- in-law was very particular and also took a promise from him regarding the same. He has further admitted that PW.2 did not state before him that accused No.1 and 2 and 4 harassed the deceased for money and whenever he went to their house, he had to take permission from accused No.4 and accused No.1 expressed that they were giving Rs.1 lakh as dowry to their KL,J Crl.A. No.1284 of 2008 another sister, whereas he was given Rs.10,000/- only. PW.11 further deposed PW.4 did not state before him that PW.1 gave Rs.40,000/- after retirement and accused No.1 refused the amount on the ground that it is insufficient and that then PW.1 gave Rs.50,000/- to accused No.1 and deceased tried to commit suicide and that PW.1 told him that he would seek the intervention of the councillor and the matter was conciliated.

34. By referring the above said depositions and admissions of prosecution witnesses, the learned counsel for the appellants would contend that there was no demand of dowry by the appellants – accused Nos.1, 2 and 4 in connection with the marriage of the deceased with accused No.1. The only allegation made by PW.1, 2 and 4 is that the accused demanded additional dowry at the time of marriage of second daughter of PW.1 i.e. sister of the deceased on the ground that PW.1 is giving dowry which is more than the dowry given to accused No.1 at the time of marriage.

35. Admittedly, the marriage of second daughter of PW.1 was performed in the year 1998, whereas the marriage of the deceased with accused No.1 was performed on 20.03.1992. The deceased and accused No.1 were blessed with a son and he was aged about 14 years as on the date of death of the deceased.

36. It is relevant to note that though police cited mother of the deceased as LW.2, they did not examine her before the trial Court. The learned counsel for the appellants by referring the same would contend that normally mother of the deceased will be in a position to tell the facts and she will be in a position to know the condition of her daughter and day-to-day activities and her whereabouts rather than father. The learned counsel for  the appellants would further contend that none of the witnesses including PW.1, father of the deceased, PW.2, brother of the deceased, PW.4 maternal uncle of the deceased, deposed about the alleged demand of dowry in connection with the marriage of the parties. Even, according to Ex.P1 and deposition of PWs.1, 2 and 4, the deceased and accused No.1 were lived happily till they were blessed with a son. As stated above, they blessed with a son and as on the date of death of deceased, son of the deceased and accused No.1 was aged about 14 years.

37. It is also relevant to note that though it is stated in Ex.P1 – report and as deposed by PW.1, PW.2 and PW.4 that the accused has taken care of the welfare of the deceased till she was blessed with a son and thereafter started harassing the deceased for additional dowry both, mentally and physically. Even as per Ex.P1 and deposition of PWs.1, 2 and 4, the accused have demanded additional dowry at the time of marriage of second daughter of PW.1 i.e. in the year 1998. Admittedly, the marriage of the deceased with accused No.1 was held on 20.03.1992. None of the witnesses deposed about any complaint given either to police or to any panchayat/conciliation proceedings were held either before the elders or before well-wishers of both parties. It is relevant to note that both the families of accused and PW.1 are closely related to each other. Accused No.1 is none other than nephew of PW.1 i.e., sister’s son. The entire investigation and depositions of all the witnesses are silent with regard to any complaint given by PW.1 and his family members and also conciliation or panchayat held before the well- wishers and community elders. IN the absence of the same, it is highly difficult to believe that the accused demanded dowry from PW.1 and harassed the deceased.

KL,J Crl.A. No.1284 of 2008

38. As rightly contended by the learned counsel for the appellants that by virtue of amendment vide Act No.63 of 1984 w.e.f. 02.10.1985, the words “in connection with the marriage of the said parties” are added and, therefore, the alleged demand of dowry should be in connection with the marriage of the said parties. Section 4 of the Act, 1961 also deals with “penalty for demanding dowry’. Admittedly, in the present case, there is no demand of dowry in connection with the marriage of the parties viz., deceased and accused No.1.

39. As discussed supra, the entire complaint lodged by PW.1 against the accused is that the accused have demanded additional dowry, more particularly, the dowry, which was given to the second daughter of PW.1 at the time of her marriage in the year 1998 i.e., six years after the marriage of the deceased. Even the said alleged demand of additional dowry at the time of marriage of second daughter of PW.1 is also not proved with cogent evidence.

40. It is relevant to note that the definition of ‘dowry’ under Section 2 of the Act, 1961 mere demand thereof would not be an offence under Section 4 of the Act, 1961. It should either be given or agreed to be given at or before or after the marriage in connection with the marriage. Although in common parlance one very often uses the term “dowry demand” in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet this will not amount to demand for dowry under the Act, 1961 in view of the definition of dowry contained in Section 2 of the Act, 1961.

41. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to property of valuable security given or agreed to be given at or before or after the marriage. The alleged offence as made out in the complaint petition may attract the penal provision as contained in Section 498-A IPC. The Parliament in its wisdom appended the explanation as to what “cruelty” means and has constructed sub-clause

(b) of Section 498-A in the following words, “harassment of the woman where such harassment 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.” If the cases of this nature are to be brought within the ambit of Section 4 of the Act, 1961, then the word “dowry” under Section 2 of the Act shall have to be redefined in the light of sub-clause (b) under Section 498-A IPC. The term “extortion demand” popularized by the Media may also find a place in the definition of dowry as observed by the Calcutta High Court in Sankar Prasad Shaw v. State1.

42. No doubt, the demand made subsequent to the marriage is also covered under the definition ‘dowry’, but the said demand should be in connection with the marriage. The Hon’ble Supreme Court in Kamesh Panjiyar v. State of Bihar2 held that there are three occasions related to dowry i.e., one is before the marriage, second is at the time of marriage and the third “at any time” after the marriage. The third occasion may appear to be unending period, but the crucial words are “in connection with the marriage of the said parties” but payments which are customary payments . 1991 Crl.L.J. 639 (Cal) . (2005) 2 SCC 388 KL,J Crl.A. No.1284 of 2008 for e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression “dowry”.

43. The Hon’ble Supreme Court in Ashok Kumar v. State of Haryana3 had an occasion to deal with the definition of ‘dowry’ under Section 2 of the Act, 1961. In the said case, the Apex Court held that all the expressions used under Section 2 of the Act, 1961 are of a very wide magnitude. The expression “in connection with the marriage” cannot be given a restricted or a narrower meaning. Even in common parlance and on its plain language, it has to be understood generally. The object being that everything which is offending at any time i.e. at, before or after the marriage would be covered under this definition, but the demand of dowry has to be “in connection with the marriage”. “In connection with the marriage” is an expression which has to be given a wider connotation. However, the demand of dowry should not be so customary that it would not attract, on the face of it, the provisions of this section. The customary payments given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage would not be covered under the expression “dowry”. But where the husband had demanded a specific sum from his father-in-law and upon not being given harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of “dowry” under the Act.

44. The Hon’ble Supreme Court had also an occasion to deal with the definition of ‘dowry’ in Reema Aggarwal v. Anupam4 and held that the definition of the term “dowry” under Section 2 of the Act, 1961 shows that . (2010) 12 SCC 350 . (2004) 3 SCC 199 KL,J Crl.A. No.1284 of 2008 any property or valuable security given or “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Act. Property or valuable security so as to constitute “dowry” within the meaning of the Act must be given or demanded “as consideration for the marriage”.

45. The Hon’ble Supreme Court in S. Gopal Reddy v. State of A.P.5 held that Court’s approach should be realistic in dealing with a case under the Act. Provisions of the Act should interpreted in the light of the object of the Act so as to further that object but it being a penal statute Court should be cautious and careful so that suspicion, conjectures and surmise may not influence its judgment. At the same time, it cannot acquit an accused merely on the basis of technicalities and minor discrepancies.

46. The Apex Court in Surinder Singh v. State of Haryana6 held that emphasis under Section 2 is on property or valuable security given “at or before” or ” at any time after” marriage, in connection with marriage. Amount or things demanded must, therefore, have a nexus with marriage. Words “insufficient and inferior quality of dowry” are important. They indicate that transaction of giving dowry was not complete.

47. The Apex Court also in Rajinder Singh v. State of Punjab7 held that the expression ” in connection with” would in the context of the social evil sought to be tackled by the Act mean “in relation with” or “relating to”. Thus, any money or property or valuable security demanded by any of the . (1996) 4 SCC 596 . (2014) 4 SCC 129 . (2015) 6 SCC 477 KL,J Crl.A. No.1284 of 2008 persons mentioned in Section 2 of the Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. Such giving or agreeing to give of any property or valuable security can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnized. The Honble Supreme Court in M. Narayan v. State of Karnataka8 while dealing with the definition of ‘dowry’ and following the principle held in Rajinder Singh7 held that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless the facts of a given case clearly and unequivocally point otherwise.

48. It is also relevant to note that the accused was initially charged under Section 498-A and 306 IPC and also Sections 3 and 4 of the Act, 1961. Section 498-A IPC, deals with husband or relative of husband of a woman subjecting her to cruelty. Section 306 IPC deals with abetment of suicide. Section 3 of the D.P. Act, 1961, deals with penalty for giving or taking dowry. The trial Court acquitted all the accused including the appellants herein – accused Nos.1,2 and 4 for the offences under Section 498-A and 306 IPC and Section 3 of the Act, 1961. There is a finding given by the trial Court that the deceased was not subjected to cruelty by the accused and the prosecution failed to prove beyond reasonable doubt that the . (2015) 6 SCC 465 KL,J Crl.A. No.1284 of 2008 accused are responsible for abetment of committing suicide by the deceased. The trial Court also acquitted all the accused under Section 3 of the Act, 1961 on the ground that there was no demand of dowry and there is no taking of dowry by them.

49. The trial Court convicted the appellants – accused Nos.1, 2 and 4 for the offence under Section 4 of the Act, 1961 on the ground that demand of additional dowry made by the accident Nos.1, 2 and 4 is cogently proved by the prosecution. The trial Court despite giving a finding “in this case, though, it is doubtful as to whether any such demand was made with the deceased, no doubt, remains that dowry was demanded from Pw.1 by accused Nos.1, 2 and 4, held that Nos.1, 2 and 4 have demanded additional dowry. The trial Court recorded conviction relying upon the judgment of the Hon’ble Supreme Court in State of Andhra Pradesh v. V. Raj Gopal Asawa9, but the facts in the said decision are altogether different from the facts of the present case. In the said case, it is held by the Hon’ble Supreme Court held that demand neither conceives nor would conceive any agreement. The word ‘agreement’ referred to in Section 2 of the Act has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is agreement for dowry is misconceived and is contrary to the mandate and the object of the Act. It was further held by the Hon’ble Apex Court that it is not necessary that there should always be an agreement for dowry. As discussed supra, in the present case, there is no agreement for dowry and there is no demand of dowry at all. Therefore, the facts of the present case are altogether different to the facts and the principle held by the Hon’ble Apex Court in the aforesaid decision. The . 2004 (1) ALD (Crl) 642 (SC) KL,J Crl.A. No.1284 of 2008 trial Court gave a finding that “However the evidence gives an understanding that some of the accused developed greed for additional dowry as more dowry was given to the sister of the deceased. But the prosecution could not prove that the accused subjected the deceased to cruelty and harassment with a demand of money, hence no offence under section 498-A IPC can be held as proved.”

50. As stated supra, despite the above said finding, the trial Court convicted the appellants – accused Nos.1, 2 and 4 for the offence under Section 4 of the Act, 1961. There is no specific finding given by the trial Court with regard to the alleged demand of dowry by the appellants in connection with the marriage of the parties. At the cost of repetition, as discussed supra, the alleged demand of dowry by the accused is at the time of marriage of second daughter of PW.1. The said alleged demand is also not in connection with the marriage of the parties herein viz., the deceased and accused No.1. the trial Court has acquitted all the accused for the offences under Sections 498-A, 306 IPC and Section 3 of the Act, 1961, should not have convicted the appellants under Section 4 of the Act, 1961 despite there is a specific finding that the prosecution failed to prove the demand of additional dowry or harassment or cruelty.

51. In view of the above said discussion, the conviction recorded by the trial Court under Section 4 of the Act, 1961 against the appellants – accused Nos.1, 2 and 4 is unsustainable, both on the facts and in law. It is also relevant to note that the prosecution failed to prove that the appellants have demanded dowry in connection with the marriage of the deceased with accused No.1 beyond reasonable doubt. It is further relevant to note that the marriage of accused No.1 with the deceased was held on 20.03.1992 and KL,J Crl.A. No.1284 of 2008 they were blessed with a son, who was aged about 15 years as on the date of giving evidence as PW.3 before the trial Court and he is now 27 years old. According to him (PW.3), he is staying with his father from childhood. It is also settled principle of the Apex Court in a catena of decisions time and again that right to live is a fundamental right guaranteed to a citizen under Article 21 of the Constitution of the India. Therefore, the Court should cautious while recording conviction against accused which would defeat the said right guaranteed to the citizens under Article 21 of the Constitution of India. The Courts should record conviction in the event of prosecution proving the offence beyond reasonable doubt. Coming to the case on hand, as discussed supra, the prosecution miserable failed to prove the demand of dowry as defined under Section 2 of the Act, 1961, more particularly, in connection with the marriage between the deceased and accused No.1 and, therefore, the appellants – accused Nos.1, 2 and 4 are entitled for acquittal.

52. In view of the above discussion, the impugned judgment dated 14.10.2008, passed by the V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad in Sessions Case No.253 of 2008, convicting the appellants – accused Nos.1, 2 and 4 for the offence under Section 4 of the Dowry Prohibition Act, 1961 is hereby set aside and accordingly, they are acquitted. They are on bail. Their bail bonds shall stand cancelled.

The present Criminal Appeal is accordingly allowed. As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.

_______________________ JUSTICE K. LAKSHMAN 24th April , 2020 Note: L.R. Copy to be marked.

(B/O)Mgr