AI Structured Summary
Not yet generated for this judgment
Judgment
A.S. Pachhapure, J.—The appellant has challenged the conviction and sentence for the offences punishable under Sections 498-A and 304
Part II IPC and Sections 3 and 4 of the Dowry Prohibition Act (hereinafter referred to as ''the Act'' for short) on a trial held by the Fast Track
Court, Bangalore City. The facts relevant for the purpose of this appeal are as under:
The appellant is the mother-in-law of Tabasum (the deceased). Tabasum married to Khasim Ali the son of the appellant one and half years prior to
the incident. Through the wedlock she has a male child. At the time of marriage, the prosecution alleges that a sum of Rs. 10,000/- cash, gold chain
and rings were given as dowry. After the marriage she was subjected to cruelty and harassment on the ground that sufficient dowry was not given
at the time of the marriage and the appellant is said to have been insisting her to bring some more gold and cash. The husband of the appellant was
not happy with the attitude and conduct of the appellant - his mother. On 15.6.2000 the hair removing ceremony of the son of the deceased was to
be held at Gulbarga and at that time the appellant is said to have insisted the parents of Tabasum to bring gold chain, clothes etc., as a gift in the
said ceremony. But, Asifa the eldest sister of deceased Tabasum was not well, the parents of the deceased and the family members did not attend
to the ceremony. After return from Gulbarga the deceased was subjected to cruelty and harassment on the ground that nothing was given during
the ceremony. Even she was not allowed to go to her parents home to see her eldest sister Asifa who was not well. It is alleged that the appellant
instigated her husband to abuse Tabasum (the deceased).
On 29.5.2000 at about 8.30 a.m. it is alleged that the deceased was boiling water on the stove and when she was near the stove, the appellant
is said to have pushed her, thereby the deceased fell on the stove and the kerosene can also fell down, and she caught fire due to the kerosene
spread on the ground. She suffered burns and the husband of the appellant and others came and extinguished the fire. Ultimately she was taken to
the hospital for the purpose of treatment. At the first instance she was taken to Victoria Hospital and later to Medi Home Hospital. On 2.6.2000
the deceased died due to the burns.
While she was in the treatment in the Medi Home Hospital, the police approached her and recorded her complaint Ex. P5.
During the course of investigation the spot mahazar Ex. P1 was held and under the said mahazar MO. 1 - Stove, MO. 2 - burnt clothes were
seized and the statement of the witnesses were recorded. On the death of Tabasum, an inquest was held on the body of the deceased by the
Taluka Executive Magistrate. The seized articles were sent to the opinion of the experts. The report was collected and on completion of the
investigation, a charge sheet came to be laid against the appellant and her husband accused No. 2.
In the course of the trial, the prosecution examined PWs. 1 to 17 and got marked the documents Exs. P1 to P14 and M.Os. 1 and 2. The
statement of the appellant was recorded u/s 313 Cr.P.C. No defence evidence was led. The trial Court after hearing the counsel for the parties
and on appreciation of the material on records, convicted the appellant for the charge u/s 498-A, 304 Part II IPC and under Sections 3 and 4 of
the Act. It ordered the appellant to undergo rigorous imprisonment for seven years and to pay fine of Rs. 5,000/- for the offence u/s 304 Part II
IPC and lesser sentence for other offences. Aggrieved by the conviction and sentence, the present appeal is filed.
I have heard Sri Hashmath Pasha, the learned counsel for the appellant and also learned High Court Government Pleader for the respondent-
State.
The point that arises for my consideration is;
Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court for the offences
punishable under Sections 498-A, 304 Part II IPC and Sections 3 and 4 of the Act?
It is the submission of the learned counsel for the appellant that the death of Tabasum was due to accidental burns and not as suggested by the
prosecution. He submits that the complaint Ex. P5 was recorded only when the parents of the deceased were present and therefore he submits that
no reliance could be placed on Ex. P5. It is also his submission that on two occasions when she was admitted to the hospital i.e. firstly at Victoria
Hospital and secondly at Medi Home Hospital, the victim herself stated before the doctor that it was a accidental stove burst and not for any other
reason. Further he submits that the material placed on record is insufficient to award conviction for the offence u/s 304 Part II IPC. It is also his
submission that, the alleged payment of Rs. 10,000/- and the golden ornaments was a customary payment and not a dowry as defined under the
provisions of the Act. He has brought to the notice of this Court that the evidence of the witnesses who state that the dowry was not demanded by
the appellant or the members of the family. So, he submits that there was no demand for dowry and the conviction for the offence under Sections 3
and 4 of the Act is improper and illegal. So also it is the contention that the material placed on record is insufficient to attract the provisions of
Section 498-A IPC. Hence, he submits that the appellant is entitled to an order of acquittal.
On the other hand the learned High Court Government Pleader supporting the judgment and order of the trial Court submits that the prosecution
has proved the guilt beyond reasonable doubt and dying declaration recorded by the police has been properly relied upon by the trial Court in
awarding the conviction. He submits that the appellant has not made out any grounds to warrant interference in the conviction and sentence
ordered.
As could be seen from the allegations in the complaint at Ex. P5, which is recorded by the PW 14-PSI, the deceased was in Medi Home
hospital. As per the allegations in the complaint Ex. P5, the deceased stated that at the time of the marriage a sum of Rs. 10,000/-, gold chain and
rings were given and that there was harassment even subsequent to the marriage on the ground that there was insufficient dowry given at the time of
the marriage. So far as this demand is concerned, the prosecution also relies upon the evidence of PW 8-Noorunnisa the mother of the deceased
Tabasum. Scrutiny of the evidence of PW 8 reveals that the parents of the deceased were poor and even at the time of marriage of Tabasum, they
were residing in the house of Asifa Sultana, the eldest daughter. PW 8 further states in her evidence that no dowry was demanded at the time of
marriage, but later after the betrothal ceremony the accused said to have demanded a sum of Rs. 10,000/-, gold chain and gold ring to the
bridegroom and the ornaments to Tabasum (the deceased). She also states that the cash amount of Rs. 10,000/- was paid by her in the hands of
the appellant.
That apart, PW 9 Raziya Sultana the granddaughter of PW 8 also states in her evidence that a sum of Rs. 10,000/- was demanded in addition
to the golden ornaments for the bridegroom apart from the golden ornaments to Tabasum (the deceased). In fact she also states in her evidence
that there was no demand made for dowry or ornaments at the time of the engagement ceremony. So, whatever demand that has been made, as
stated by PWs. 8 and 9 is subsequent to the engagement ceremony and there is a consistent version of PW 9 as well in her evidence.
PW 10 Abdul Zameel is another son-in-law of PW 8 Noorunnisa and is the husband of PW 9 Raziya Sultana. PWs. 8, 9 and 10 also state
that after the engagement ceremony a sum of Rs. 10,000/- was demanded by the appellant and her husband and in addition to golden ornaments,
cash amount of Rs. 10,000/- was paid in the hands of the appellant.
It is no doubt that PWs. 8 to 10 are the three interested witnesses, but at the same time it is relevant to note that there is consistent version so
far as the demand of Rs. 10,000/- and the gold ornaments. Particularly whenever any cash is paid at the time of the engagement ceremony or at
the time of the marriage, except the family members, the others will not be present. In such circumstances, rather the absence of independent
witnesses to prove the payment of Rs. 10,000/- or the gold ornaments is impossible. Anyhow, the evidence of the interested witnesses has to be
looked into with more caution and the scrutiny has to be strict.
As could be seen from the cross-examination of PWs. 8 to 10, nothing is suggested regarding payment of Rs. 10,000/- and the gold
ornaments as customary, though the learned counsel submitted that this was a customary payment. As could be seen from the definition of dowry
u/s 2 of the Act;
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 the said parties, but does not include dower or mahr in case if the
parties belonged to Muslim community.
The case on hand relates to the people belonging to the Muslim community, the amount of Rs. 10,000/- which is paid is neither Mahr nor
Dower and therefore it cannot be said to be a customary payment. That apart, in the cross examination, nothing is elicited or suggested to the
witnesses that this payment was under the custom.
Perusal of the evidence of these three witnesses would clearly reveal that the demand was made by the appellant and her husband and the
payment of Rs. 10,000/- was made at the hands of the appellant. Except PW 9, the other two witnesses clearly state in their evidence that the cash
amount was paid in the hands of the appellant alone. In the circumstances, I am of the opinion that there is ample evidence so far as the crime
under Sections 3 and 4 of the Act.
So far as subjecting the deceased to cruelty and harassment is concerned, it is only the allegations in the complaint Ex. P5 and the evidence of
PWs. 8, 9 and 10. Perusal of the complaint Ex. P5 reveals an allegation by Tabasum that she was subjected to cruelty on the ground that sufficient
dowry was not brought at the time of the marriage. But nowhere in the complaint Ex. P5 there is any specific mention with regard to the nature of
cruelty and harassment. Tabasum in her complaint Ex. P5 refers to two incidents i.e., the demand of Rs. 10,000/- and the gold ornaments at the
time of the marriage and the demand in respect of the gold and clothes at the time of the hair removing ceremony of their son. But the scrutiny of
the allegations in the complaint does not reveal specific acts committed by the appellant. Except stating that after returning from Gulbarga, she was
not allowed to go to see her elder sister, there is no clinching evidence in respect of the offence u/s 498-A IPC.
As could be seen from the evidence of PWs. 8 to 10, they state that the deceased was subjected to cruelty and harassment and in one
sentence they said that the appellant was abusing and assaulting her. It is relevant to note that PWs. 8 to 10 are the persons who heard about the
cruelty and harassment from Tabasum (the deceased). Except this version, there is no other evidence to prove the alleged cruelty and harassment.
There are vague and general allegations in the evidence of these witnesses about the beating and abusing the deceased Tabasum. Scrutiny of the
evidence of these three witnesses does not inspire the confidence of the Court and there is no other independent witnesses examined by the
prosecution to prove the cruelty and harassment. In the absence of a specific allegation with regard to cruelty and harassment in the complaint Ex.
P5, I do not think that the evidence of interested witnesses PWs. 8 to 10 could be accepted to prove that there was such cruelty and harassment
as envisaged under the provisions of Section 498-A IPC. Therefore, conviction of the appellant for the charge u/s 498-A IPC has to be set aside.
So far as the offence u/s 304 Part II IPC is concerned, it is the oral dying declaration and the statement of Tabasum at Ex. P5 is relied upon by
the prosecution to prove the dying declaration of the deceased Tabasum. As per the version of the prosecution, the incident took place on
29.5.2000 at 8.30 a.m. Immediately she was shifted to Victoria Hospital and her husband was present at the time when she was admitted to the
hospital. The history that has been mentioned in the medical records of the hospital as sustaining burns due to accidental stove burst, she was
shifted to Medi Home Hospital. Even at the time when she was admitted in the said hospital, the same history of accidental stove burst has been
mentioned. This is what was stated by the deceased before the doctors at the time of admission in both the hospitals. It is only after the parents of
the deceased came to the hospital that the PSI - PW 14 recorded the statement of Tabasum, wherein she stated that at the time when she was
boiling water on the stove, the appellant pushed her on the stove and she fell down. There was a kerosene can which also fell down and the
kerosene was spread, thereby she said to have sustained burns. On this aspect of the matter if the spot mahazar Ex. P1 is looked into, there is no
mention of the presence of kerosene can at the place of the incident. That apart, the deceased Tabasum was alive till 2.6.2000 and the investigating
agency has not made any efforts to secure the presence of the Taluka Executive Magistrate for recording the dying declaration of the deceased.
Further more, though PW 4 was present at the time when dying declaration was recorded, there is no mention of the fact that the deceased was in
a condition to give a statement. The possibility of influence by the parents of the deceased to implicate the appellant cannot be over ruled. So, the
scrutiny of the material on records and the evidence of the prosecution does not reveal clinching evidence for the offence u/s 304 Part II IPC. In
that view of the matter, I am of the opinion that the conviction and sentence ordered by the trial Court for the offence u/s 304 Part II IPC has to be
set aside.
Though u/s 3 of the Act a minimum sentence of five years has been prescribed, the learned counsel for the appellant has brought to the notice
of this Court that the appellant is suffering from heart deceased, angiogram was done on 2.6.2005, a perusal of the records reveal that the
blockage was removed by performing angiography. That apart, he submits that the appellant is aged about 60 years and in case if she is confined
to custody, great injustice will be caused to the appellant and to her family members. This Court has discretion to reduce the sentence less than five
years, confining the sentence of two months already undergone would not be sufficient.
Taking into consideration the aforesaid circumstances, I am of the opinion that the minimum sentence of three months will have to be awarded.
In the result, the appeal is allowed in part. The conviction of the appellant for the charge under Sections 498-A and 304 Part II IPC is set aside.
The appellant is acquitted of the said charges.
The conviction of the appellant for the charge under Sections 3 and 4 of the Act is confirmed and sentence is modified. The appellant is ordered to
undergo simple imprisonment for three months for the offence u/s 3 of the Act and to pay fine as awarded by the trial Court i.e. Rs. 15,000/- in
default to undergo simple imprisonment for 15 days and for the offence u/s 4 of the Act, she is ordered to undergo simple imprisonment for three
months and to pay fine of Rs. 2,000/-, in default to undergo simple imprisonment for seven days. Both the sentences shall run concurrently.
The appellant is entitled to set off u/s 428 Cr.P.C.
The trial Court is directed to secure the presence of the appellant to undergo the remaining part of the sentence.