There is also no material to
conclude that the demand by the 2nd and 5th accused was
with the knowledge or consent of the 1st accused.
Sometimes, the 1st accused would be a mute spectator or a
helpless chap. That is not sufficient to find him guilty for
demand of dowry as there is no demand by the 1st revision
petitioner. In the above circumstances, I find that the
conviction and sentence as against the 1st revision petitioner
(1st accused) are not sustainable.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
Crl.Rev.Pet.No. 1627 of 2006 ( )
--------------------------------
1. SUNIL, S/O.BHASKARAN,
V
1. STATE OF KERALA, REPRESENTED BY
Dated this the 11th day of October, 2012
Revision petitioners are accused 1 and 2 in C.C.
No.386 of 2002 on the file of the Chief Judicial Magistrate,
Pathanamthitta. Second respondent herein prosecuted the
revision petitioners along with six others (accused Nos.3 to
8) by filing a complaint accusing offence under section 4 of
the Dowry Prohibition Act, 1961 (hereinafter referred to as
"the Act") with plea that on 17-11-2001 accused Nos. 1 and
5 visited his house and put forward a proposal of wedding
between his daughter Raji and the 1st accused. He agreed
for the same. On 22-11-2001, all the accused went to the
house of the 2nd respondent, met the daughter of the 2nd
respondent and agreed to proceed with the proposal.
Second accused is the mother of the 1st accused. Accused 3
to 7 are the other sons of the 2nd accused and 8th accused is
her daughter. In return, the 2nd respondent and others went
to the house of the accused and they agreed for proceeding
with the proposal of wedding. On 16-12-2001, at the house
of the 2nd respondent there was an engagement, wherein
relatives and friends of both families attended and decided
to conduct the wedding on 20-1-2002 at the Parish Hall of
Ebanezar Marthoma Church. The 2nd respondent offered a
sum of `40,000/- and 25 sovereigns of gold ornaments as
share of his daughter, to be given at the time of wedding.
Accused agreed. Accordingly, the 2nd respondent made all
arrangements for the wedding. He arranged money and
gold ornaments. Invitations were sent to relatives and
friends. While so, on 15-1-2002 accused 2 and 5 went to the
house of the 2nd respondent and demanded a sum of
`1,50,000/- as dowry in addition to the amount of `40,000/-
and 25 sovereigns of gold offered by the 2nd respondent.
They further stated that there were other proposals
whereby two or three lakhs of rupees were offered as dowry
to the 1st accused. Because of the demand for dowry,
marriage could not be solemnized.
2. On the complaint, the learned Magistrate took
cognizance for the offence and issued process responding to
which all accused, except the 5th accused entered
appearance. They pleaded not guilty. Fifth accused was
reported absconded.
3. On the side of the prosecution PWs.1 to 3 were
examined. Exts.P1 and P2 were marked. When questioned
under section 313 Cr. P. C., the accused took a plea that
there was only a proposal for marriage and later it was
informed through one Pavithran, who was examined as
DW1, that the daughter of the 2nd respondent was not
interested in the marriage as she had love affair with one
Anilkumar. In support of that plea DWs.1 and 2 were
examined.
4. On appraisal of the evidence, the learned
Magistrate found the accused 1 and 2 guilty under section 4
of the Act and convicted them thereunder. The 1st accused
was sentenced to undergo simple imprisonment for six
months and a fine of ` 5,000/- with a default sentence of
simple imprisonment for three months. Stating that the 2nd
accused was an old and ailing lady, she was sentenced to
imprisonment till the rising of the court and to pay a fine of
` 5,000/- with default sentence of simple imprisonment for
three months. Case against the fifth accused was split up
and re-numbered.
5. Aggrieved by the above conviction and sentence,
accused 1 and 2 preferred Crl.A.No.187 of 2005. Addl.
Sessions Judge, Fast Track Court-II, Pathanamthitta, to
whom the appeal was made over, by the impugned
judgment dated 10-4-2006, while confirming the conviction
and sentence, dismissed the appeal. Assailing the legality,
correctness and propriety of the above conviction and
sentence, this revision petition is preferred.
6. Heard Sri.Vinoy Varghese Kallummoottil, the
learned counsel appearing for the revision petitioners, and
Smt. Sreena George, learned Public Prosecutor. Learned
counsel for the revision petitioners took me through the
evidence on record as well as the impugned judgment.
7. PW1 is the 2nd respondent. PW2 is the President of
Puthukulam SNDP Branch. PW3 is a neighbour. Going by
the evidence of PWs.1 to 3, I find that there was proposal
for marriage, engagement was held on 16-12-2001 and the
wedding was scheduled to 20-1-2002. While so, on 15-1-
2002 accused Nos.2 and 5 went to the house of the 2nd
respondent and made the demand for an amount of
`1,50,000/- as dowry in addition to `40,000/- and 25
sovereigns of gold offered by the 2nd respondent. Exts.P1
and P2 would show that following the engagement, a
certificate was issued from the S.N.D.P. Branch in which
the 2nd respondent is a member, and that the date and time
of the wedding was fixed in consultation with an astrologer.
Though PWs.1 to 3 were subjected to searching cross-
examination, no material was disclosed to disbelieve their
evidence regarding demand of dowry. The court below did
not rely upon the evidence of DWs.1 and 2 on the ground
that their evidence is not sufficient to discharge the burden
under section 8A of the Act that the revision petitioners had
not committed the offence under section 4 of the Act.
8. Very case advanced by the revision petitioners is
that the 2nd respondent through DW1 informed that his
daughter had love affair with one Anilkumar. But DW1
would deny of having knowledge about the love affair of the
daughter of the 2nd respondent with Anilkumar. What DW1
would dispose is that he was the proposer of the marriage
and Rajani (bride) requested him, not to persuade her for
the marriage. Evidence of DW1 appears very artificial. It is
not in tune with the defence plea. Evidence of DW2 is not at
all any more better. Therefore, I find that the court below
was justified in disbelieving the defence evidence and
believing PWs.1 to 3 regarding the demand of dowry by the
2nd and 5th accused. But, carefully going through the
evidence of PW1 and the pleadings in the complaint, I find
that there is no allegation that on 15-1-2002 the 1st revision
petitioner was along with the 2nd and 5th accused when they
demanded further dowry. There is also no material to
conclude that the demand by the 2nd and 5th accused was
with the knowledge or consent of the 1st accused.
Sometimes, the 1st accused would be a mute spectator or a
helpless chap. That is not sufficient to find him guilty for
demand of dowry as there is no demand by the 1st revision
petitioner. In the above circumstances, I find that the
conviction and sentence as against the 1st revision petitioner
(1st accused) are not sustainable.
9. The learned counsel for the revision petitioner also
argued that to constitute an offence under section 4 of the
Act, there shall be a marriage and since there was no
marriage no offence is made out. I find that a reading of
sections 2 and 4 of the Act, which define dowry and the
penal provision for demanding dowry, is relevant for a
correct appraisal of the case.
10. Section 2 of the Act read as follows:-
2. Definition of 'dowry'.--In this 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
CRRP 1627/2006 8
b) by the parent 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 the case
of persons to whom the Muslim Personal Law
(Shariat) applies.
Section 4 reads as follows:-
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
judgment, impose a sentence of imprisonment
for a term of less than six months.
11. The definition of dowry quoted above would
include any property or valuable security given or agreed to
be given at or before the marriage in connection with the
marriage. Here in this case, demand is just five days before
the marriage. Second respondent had made all
arrangements for the marriage. Then comes the demand.
Section 4 would show that a demand, directly or indirectly
for dowry from the parents or relatives or guardian of a
bride or bridegroom would make out offence under section
4 of the Act. Bide or bridegroom would cover persons, who
are parties to a proposed marriage, even before the
marriage. Therefore, to establish offence under section 4 of
the Act, marriage is not necessary. Demand for dowry even
before the marriage would establish offence under section 4
of the Act. In this case the courts below concurrently found
that there was demand for dowry after the engagement and
before the marriage. Such demand would make out the
offene under section 4 of the Act. Reading the evidence of
PWs.1 to 3, I find no reason to diverge with the court below.
It is also pertinent to note that by section 8A of the Act, in a
prosecution alleging offence under section 3 or 4 of the Act,
the burden is upon the accused to show that no such taking,
abetting or demand of dowry was made by him. In this case,
the evidence of PWs.1 to 3 would establish the demand
made by accused 2 and 5 and there was failure on the side
of the revision petitioners to establish that there was no
demand. Therefore, I find that the offence under section 4 of
the Act is established against the 2nd revision petitioner (2nd
accused), but the prosecution has failed to establish that
there was demand of dowry by the 1st revision petitioner(1st
accused). Conviction against the 2nd revision petitioner is
based upon cogent evidence.
12. The trial court was very lenient in reducing the
substantial sentence against the 2nd revision petitioner to
imprisonment till the rising of the court despite the mandate
of the Act for a minimum sentence of six months. Therefore,
the sentence against the 2nd revision petitioner requires no
interference. The 1st revision petitioner is entitled to an
order of acquittal. The conviction and sentence against the
2nd revision petitioner require no interference.
13. In the result, the revision petition is allowed in
part. The conviction and sentence against the 1st revision
petitioner are set aside. He is acquitted and is set at
liberty. The conviction and sentence against the 2nd revision
petitioner are confirmed. The 2nd revision petitioner is
directed to surrender before the trial court which shall see
the execution of sentence and report compliance.
P. S. GOPINATHAN,
JUDGE.
Print Page
conclude that the demand by the 2nd and 5th accused was
with the knowledge or consent of the 1st accused.
Sometimes, the 1st accused would be a mute spectator or a
helpless chap. That is not sufficient to find him guilty for
demand of dowry as there is no demand by the 1st revision
petitioner. In the above circumstances, I find that the
conviction and sentence as against the 1st revision petitioner
(1st accused) are not sustainable.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
Crl.Rev.Pet.No. 1627 of 2006 ( )
--------------------------------
1. SUNIL, S/O.BHASKARAN,
V
1. STATE OF KERALA, REPRESENTED BY
Dated this the 11th day of October, 2012
Revision petitioners are accused 1 and 2 in C.C.
No.386 of 2002 on the file of the Chief Judicial Magistrate,
Pathanamthitta. Second respondent herein prosecuted the
revision petitioners along with six others (accused Nos.3 to
8) by filing a complaint accusing offence under section 4 of
the Dowry Prohibition Act, 1961 (hereinafter referred to as
"the Act") with plea that on 17-11-2001 accused Nos. 1 and
5 visited his house and put forward a proposal of wedding
between his daughter Raji and the 1st accused. He agreed
for the same. On 22-11-2001, all the accused went to the
house of the 2nd respondent, met the daughter of the 2nd
respondent and agreed to proceed with the proposal.
Second accused is the mother of the 1st accused. Accused 3
to 7 are the other sons of the 2nd accused and 8th accused is
her daughter. In return, the 2nd respondent and others went
to the house of the accused and they agreed for proceeding
with the proposal of wedding. On 16-12-2001, at the house
of the 2nd respondent there was an engagement, wherein
relatives and friends of both families attended and decided
to conduct the wedding on 20-1-2002 at the Parish Hall of
Ebanezar Marthoma Church. The 2nd respondent offered a
sum of `40,000/- and 25 sovereigns of gold ornaments as
share of his daughter, to be given at the time of wedding.
Accused agreed. Accordingly, the 2nd respondent made all
arrangements for the wedding. He arranged money and
gold ornaments. Invitations were sent to relatives and
friends. While so, on 15-1-2002 accused 2 and 5 went to the
house of the 2nd respondent and demanded a sum of
`1,50,000/- as dowry in addition to the amount of `40,000/-
and 25 sovereigns of gold offered by the 2nd respondent.
They further stated that there were other proposals
whereby two or three lakhs of rupees were offered as dowry
to the 1st accused. Because of the demand for dowry,
marriage could not be solemnized.
2. On the complaint, the learned Magistrate took
cognizance for the offence and issued process responding to
which all accused, except the 5th accused entered
appearance. They pleaded not guilty. Fifth accused was
reported absconded.
3. On the side of the prosecution PWs.1 to 3 were
examined. Exts.P1 and P2 were marked. When questioned
under section 313 Cr. P. C., the accused took a plea that
there was only a proposal for marriage and later it was
informed through one Pavithran, who was examined as
DW1, that the daughter of the 2nd respondent was not
interested in the marriage as she had love affair with one
Anilkumar. In support of that plea DWs.1 and 2 were
examined.
4. On appraisal of the evidence, the learned
Magistrate found the accused 1 and 2 guilty under section 4
of the Act and convicted them thereunder. The 1st accused
was sentenced to undergo simple imprisonment for six
months and a fine of ` 5,000/- with a default sentence of
simple imprisonment for three months. Stating that the 2nd
accused was an old and ailing lady, she was sentenced to
imprisonment till the rising of the court and to pay a fine of
` 5,000/- with default sentence of simple imprisonment for
three months. Case against the fifth accused was split up
and re-numbered.
5. Aggrieved by the above conviction and sentence,
accused 1 and 2 preferred Crl.A.No.187 of 2005. Addl.
Sessions Judge, Fast Track Court-II, Pathanamthitta, to
whom the appeal was made over, by the impugned
judgment dated 10-4-2006, while confirming the conviction
and sentence, dismissed the appeal. Assailing the legality,
correctness and propriety of the above conviction and
sentence, this revision petition is preferred.
6. Heard Sri.Vinoy Varghese Kallummoottil, the
learned counsel appearing for the revision petitioners, and
Smt. Sreena George, learned Public Prosecutor. Learned
counsel for the revision petitioners took me through the
evidence on record as well as the impugned judgment.
7. PW1 is the 2nd respondent. PW2 is the President of
Puthukulam SNDP Branch. PW3 is a neighbour. Going by
the evidence of PWs.1 to 3, I find that there was proposal
for marriage, engagement was held on 16-12-2001 and the
wedding was scheduled to 20-1-2002. While so, on 15-1-
2002 accused Nos.2 and 5 went to the house of the 2nd
respondent and made the demand for an amount of
`1,50,000/- as dowry in addition to `40,000/- and 25
sovereigns of gold offered by the 2nd respondent. Exts.P1
and P2 would show that following the engagement, a
certificate was issued from the S.N.D.P. Branch in which
the 2nd respondent is a member, and that the date and time
of the wedding was fixed in consultation with an astrologer.
Though PWs.1 to 3 were subjected to searching cross-
examination, no material was disclosed to disbelieve their
evidence regarding demand of dowry. The court below did
not rely upon the evidence of DWs.1 and 2 on the ground
that their evidence is not sufficient to discharge the burden
under section 8A of the Act that the revision petitioners had
not committed the offence under section 4 of the Act.
8. Very case advanced by the revision petitioners is
that the 2nd respondent through DW1 informed that his
daughter had love affair with one Anilkumar. But DW1
would deny of having knowledge about the love affair of the
daughter of the 2nd respondent with Anilkumar. What DW1
would dispose is that he was the proposer of the marriage
and Rajani (bride) requested him, not to persuade her for
the marriage. Evidence of DW1 appears very artificial. It is
not in tune with the defence plea. Evidence of DW2 is not at
all any more better. Therefore, I find that the court below
was justified in disbelieving the defence evidence and
believing PWs.1 to 3 regarding the demand of dowry by the
2nd and 5th accused. But, carefully going through the
evidence of PW1 and the pleadings in the complaint, I find
that there is no allegation that on 15-1-2002 the 1st revision
petitioner was along with the 2nd and 5th accused when they
demanded further dowry. There is also no material to
conclude that the demand by the 2nd and 5th accused was
with the knowledge or consent of the 1st accused.
Sometimes, the 1st accused would be a mute spectator or a
helpless chap. That is not sufficient to find him guilty for
demand of dowry as there is no demand by the 1st revision
petitioner. In the above circumstances, I find that the
conviction and sentence as against the 1st revision petitioner
(1st accused) are not sustainable.
9. The learned counsel for the revision petitioner also
argued that to constitute an offence under section 4 of the
Act, there shall be a marriage and since there was no
marriage no offence is made out. I find that a reading of
sections 2 and 4 of the Act, which define dowry and the
penal provision for demanding dowry, is relevant for a
correct appraisal of the case.
10. Section 2 of the Act read as follows:-
2. Definition of 'dowry'.--In this 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
CRRP 1627/2006 8
b) by the parent 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 the case
of persons to whom the Muslim Personal Law
(Shariat) applies.
Section 4 reads as follows:-
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
judgment, impose a sentence of imprisonment
for a term of less than six months.
11. The definition of dowry quoted above would
include any property or valuable security given or agreed to
be given at or before the marriage in connection with the
marriage. Here in this case, demand is just five days before
the marriage. Second respondent had made all
arrangements for the marriage. Then comes the demand.
Section 4 would show that a demand, directly or indirectly
for dowry from the parents or relatives or guardian of a
bride or bridegroom would make out offence under section
4 of the Act. Bide or bridegroom would cover persons, who
are parties to a proposed marriage, even before the
marriage. Therefore, to establish offence under section 4 of
the Act, marriage is not necessary. Demand for dowry even
before the marriage would establish offence under section 4
of the Act. In this case the courts below concurrently found
that there was demand for dowry after the engagement and
before the marriage. Such demand would make out the
offene under section 4 of the Act. Reading the evidence of
PWs.1 to 3, I find no reason to diverge with the court below.
It is also pertinent to note that by section 8A of the Act, in a
prosecution alleging offence under section 3 or 4 of the Act,
the burden is upon the accused to show that no such taking,
abetting or demand of dowry was made by him. In this case,
the evidence of PWs.1 to 3 would establish the demand
made by accused 2 and 5 and there was failure on the side
of the revision petitioners to establish that there was no
demand. Therefore, I find that the offence under section 4 of
the Act is established against the 2nd revision petitioner (2nd
accused), but the prosecution has failed to establish that
there was demand of dowry by the 1st revision petitioner(1st
accused). Conviction against the 2nd revision petitioner is
based upon cogent evidence.
12. The trial court was very lenient in reducing the
substantial sentence against the 2nd revision petitioner to
imprisonment till the rising of the court despite the mandate
of the Act for a minimum sentence of six months. Therefore,
the sentence against the 2nd revision petitioner requires no
interference. The 1st revision petitioner is entitled to an
order of acquittal. The conviction and sentence against the
2nd revision petitioner require no interference.
13. In the result, the revision petition is allowed in
part. The conviction and sentence against the 1st revision
petitioner are set aside. He is acquitted and is set at
liberty. The conviction and sentence against the 2nd revision
petitioner are confirmed. The 2nd revision petitioner is
directed to surrender before the trial court which shall see
the execution of sentence and report compliance.
P. S. GOPINATHAN,
JUDGE.
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