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UMRIN versus STATE

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Umrin v. State - Crl. R.C. No.839 of 2005 [2007] RD-TN 2555 (31 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 31.07.2007

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. R.C. No.839 of 2005

1. Umrin

2. Haasim

3. Nayaz (died)

4. Kurshid ..Petitioners/accused Vs.

The State

rep. by The Sub-Inspector of Police

All Women Police Station,

Vellore. ..Respondent/Complainant Prayer:

This Revision has been preferred against the judgment dated 31.8.2004 in Crl.A.108 of 2003 passed by the learned Additional District and Sessions Judge (FTC), Vellore, modifying the judgment in C.C.No.307 of 2000 on the file of the Judicial Magistrate, Gudiyatham, dated 17.6.2003.

For Petitioners : Mr.V.R.Shanmuganathan For Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor ORDER



This revision has been preferred against the judgment of the learned Additional District and Sessions Judge (FTC), Vellore, in Crl.A.108 of 2003, which had arisen out of the judgment in C.C.No.307 of 2000 on the file of the Judicial Magistrate, Gudiyatham. The revision petitioners are A1, A2 & A4. A3 died pending appeal.

2.The short facts of the prosecution case is that the marriage between A1 and P.W.2-Sulthana took place some 7 years prior to the date of occurrence. At the time of marriage 30 soverigns of jewels were agreed upon to be presented by the Sulthana's parents to A1. But at the time of marriage only 25 soverigns of jewels were present by Sultana's parents. According to the complainant, after the marriage Sulthana was subjected to cruelty by the accused demanding Rs.25,000/- and the balance of 5 soverigns of gold ornaments. Hence, the accused were charged under Section 498(A) IPC and under Section 4 & 6(2) of the Dowry Prohibition Act.

3.After taking the cognizance of the case, the learned Judicial Magistrate had taken the case on file and issued summons to the accused and on their appearance copies under Section 207 of Cr.P.C., were furnished to them and when the charges were framed and questioned the accused pleaded not guilty. Before the trial Court P.W.1 to P.W.8 were examined and Ex.P.1 was exhibited.

4.P.W.1 is the brother of P.W.2. He would depose that A1, the husband of Sulthana, used to subject Sulthana to cruelty and demanded Rs.25,000/- towards more dowry and his sister Sulthana had also informed him that the accused have demanded 25 soverigns of gold ornaments towards more dowry and that his sister preferred a complaint with All Women Police Station.

5.P.W.2-Sulthana would depose that the marriage between her and A1 took place on 19.9.1992 at Paranampet and that they have been blessed with two children and that at the time of marriage her father has given 25 soverign of gold ornaments and presented two gold rings, 10 soverign of gold chain, a wrist watch, wearing apparels and house hold articles like cot, bureau and two suit cases. Thereafter, she lived with her husband at V-Kotta at Kerala. She would depose that her matrimonial life was happy only for 20 days and thereafter she was subjected to cruelty at the hands of the accused. According to her, as agreed at the time of the marriage, out of 30 soverigns of gold ornaments 25 soverigns of gold ornaments were given by her parents and 5 soverigns of gold ornaments remain to be given, besides this 5 soverign, according to P.W.2, the accused has also demanded Rs.1 lakh towards additional dowry. Since her health was deteriorated, she came to Peranampet with A1 and lived there and even at Peranampet, according to P.W.2, she was subjected to cruelty by demanding more 5 soverigns of gold ornaments and Rs.25,000/-. According to her, she was driven out of the matrimonial home and she was directed to bring more money and 5 soverign of gold ornaments and the accused threatened unless she brings the said amount and 5 soverigns of gold ornaments she will not be allowed to revive the matrimonial relationship, which made her to come to her parents house. She has preferred Ex.P.1-complaint.

6.P.W.3 is the father of P.W.2. He would also admit that at the time of marriage between P.W.2 and A1, he gave 25 soverigns of gold ornaments to P.W.2 against the demand of 30 soverigns of gold ornaments and he has promised to give 5 soverigns of gold ornaments later and he has also presented 2 + soverigns of gold ring and a chain to A1 at the time of marriage. According to him, one day at 2.00 pm P.W.2 came to his house and informed that she was subjected to cruelty.

7.P.W.4 also corroborates the evidence of P.W.1 to P.W.3. According to him, twice mediation took place between P.W.1 and A1 after the marriage and that at the time of marriage house hold articles were presented by the parents of P.W.2.

8.P.W.5 is known to the family of P.W.2 as well as the accused. According to him, P.W.2 and A1 resided in his house at V-Kotta, Kerala, for a monthly rent of Rs.500/- and advance of Rs.1000/-. According to him, both P.W.2 and A1 lived together happily for one month and on one day at 7.30 pm, the brother and sister of A1 viz., Ayath, Umrin, Kurshid & Haasim came to the house of P.W.2 and demanded Rs.25,000/- and 5 soverigns of gold ornaments. But P.W.2 informed that she is not in a position to comply with the demand. Later the accused have driven out P.W.2 from the matrimonial home. According to him, A1 got married for second time at V-Kotta and that he also attended the marriage and informed the same to the father of P.W.2.

9.P.W.7 also corroborates the evidence of P.W.1 to P.W.4.

10.P.W.8 is the Investigating Officer. According to her, the complaint preferred by P.W.2 was registered under Cr.No.11 of 2000 of All Women Police Station, Sulamangalam, under Section 498(A) and under Section 4 and 6(2) of Dowry Prohibition Act. She has examined the witnesses and recorded their statements and after completing the formalities has filed the charge sheet.

11.When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., they would deny their complicity with the crime. After going through the oral and documentary evidence the learned trial judge has come to a conclusion that the charges levelled against the accused under Section 498(A) IPC and under Section 4 & 6 (2) of the Dowry Prohibition Act have been proved beyond any reasonable doubt and accordingly convicted the accused under Section 498(A) IPC and sentenced to undergo two months RI each and a fine of Rs.300/- with default sentence, and convicted the accused under Section 4 of the Dowry Prohibition Act and sentenced to undergo 6 months RI each and a fine of Rs.200/- each with default sentence. The trial Court has also convicted the accused under Section 6(2) of the Dowry Prohibition Act and sentenced to undergo 6 months RI each. Aggrieved by the findings of the learned trial judge, the accused have preferred an appeal in C.A.No.108 of 2003 before the Additional District and Sessions Judge, FTC, Vellore. The learned first appellate Judge has partly allowed the appeal thereby setting aside the conviction and sentence of the accused under Section 4 of the Dowry Prohibition Act and confirmed in other respects the findings of the learned trial judge. A3 died pending appeal before the first appellate Court. Aggrieved by the findings of the first appellate Court, A1, A2 & A4 have preferred this revision.

12.Heard the learned counsel appearing for the revision petitioners Mr.V.R.Shanmuganathan and the learned Additional Public Prosecutor Mr.V.R.Balasubramanian and considered their respective submissions.

13.Now the point for determination in this revision is whether the conviction and sentence passed by the first appellate Court under Section 498(A) IPC and under Section 6(2) of the Dowry Prohibition Act is sustainable for the reasons stated in the memorandum of revision?

14.The Point: 14(a)The learned counsel for the revision petitioners Mr.V.R.Shanmuganathan would focus the attention of this Court to some of the discrepancies stated in Ex.P.1-complaint preferred by P.W.2. The learned counsel would point out that A4-Kurshid has subsequently been inducted in the complaint and originally as per the typed complaint A2, A3, her husband have demanded 30 soverigns of gold ornaments at the time of marriage and that her parents gave 25 soverigns of gold jewels to her at the time of marriage and the balance of 5 soverigns of gold jewels and a sum of Rs.1 lakhs was demanded by the accused by way of additional dowry and that demanding the said amount of Rs.1 lakhs and 5 soverigns of gold ornaments she was subjected to cruelty. But while deposing before the Court as P.W.2 she has stated that the accused have demanded Rs.25,000/- and 5 soverigns of gold jewels from her. The learned first appellate judge has acquitted the accused for an offence under Section 4 of the Dowry Prohibition Act, but has convicted the accused under Section 6(2) of the Dowry Prohibition Act. As per Section 6(2) of the Dowry Prohibition Act, the bride groom is bound to return the dowry received at the time of marriage to the wife within three months from the date of receipt of the dowry or after three months of the marriage. In the cross-examination P.W.2 would admit that with the help of Women Police Inspector Pushpalatha and in the presence of Geetha and Pommy and her brothers have received all the articles of her from V-Kotta to Vellore in a lorry. The learned Additional Public Prosecutor would point out that only + of the properties were received back by P.W.2 after broke open the locker. But a coherent reading of the evidence of P.W.2 will go to show that after opening of the locker and receiving + of the articles, the same was informed to police and the police enquired P.W.2 and his brothers and thereafter with the help of P.W.2's brothers and in the presence of Inspector Pushpalatha, Geetha, Pommy and Agalya, woman police, all the articles presented at the time of marriage were brought to Vellore from V-Kotta in a lorry and that the same was also photographed. Under such circumstances, since the entire gift articles were taken back from V-Kotta to Vellore with the help of the police as admitted by P.W.2, the conviction of the trial Court, confirmed by the first appellate Court under Section 6(2) of the Dowry Prohibition Act against the accused cannot be sustainable.

14(b)Now we have to see whether the conviction and sentence under Section 498(A) IPC against the accused is maintainable. P.W.5 is the independent witness, in whose house P.W.2 and A2 resided as tenants at V-Kotta. According to him, all the accused came to the house of P.W.2 at about 7.30 pm on one day and demanded 5 soverigns of gold ornaments and Rs.25,000/- towards additional dowry and when P.W.2 explained that she is not in a position to pay more dowry and more jewels the accused driven her out of the matrimonial home. It is pertinent to be noted here that P.W.5 was not at all been cross-examined by the accused. Under such circumstances, the charge against the accused under Section 498(A) cannot be said to be not proved. 14(c)At this juncture the learned counsel for the revision petitioners would contend that pending appeal A3, the father of A2, died and A1 & A2 were in prison for seven days and that even according to P.W.2 she has given birth to two children but she would say that she lived with A1 happily only for 20 days which cannot be believed. Further, there is no complaint of ill-treatment has been preferred by P.W.2 before the Jamath, which is the place intended for the Muslims to prefer any complaint regarding matrimonial disputes. Under such circumstances, I am of the view that instead of sending the accused once against to prison the sentence alone can be modified to that of the period already undergon under Section 498(A) IPC. Point is answered accordingly.

15.In fine, the revision is partly allowed and the conviction and sentence of the first appellate Court under Section 6(2) of the Dowry Prohibition Act is set aside and the accused are acquitted from the charge under Section 6(2) of the Dowry Prohibition Act. But the conviction under Section 498(A) IPC passed by the first appellate Court is confirmed but the sentence alone is modified to that of the period already undergone. The fine imposed by the first appellate Court under Section 498(A) shall sustain. ssv

To

1. The Judicial Magistrate

Gudiyatham.

2. The Chief Judicial Magistrate

Vellore.

3. The Additional District and Sessions Judge FTC

Vellore.

4. The Public Prosecutor

High Court

Madras.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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