Demand for dowry even before marriage would establish offence u/s 4 of D.P. Act

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN

THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934

Crl.Rev.Pet.No. 1627 of 2006 ( )
——————————–
CRA.187/2005 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
CC.386/2002 OF THE CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA

REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1 AND 2:
————————————————-

1. SUNIL, S/O.BHASKARAN,
NALLUVELIL MELETHIL, VETTOOR MURI
MALAYALAPUZHA VILLAGE.

2. PONNAMMA, D/O.KESAVAN,
NALLUVELIL MELETHIL, VETTOOR MURI
MALAYALAPUZHA VILLAGE.

BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

COMPLAINANT(S)/RESPONDENTS/COMPLAINANTS:
————————————–

1. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

2. P.J.RAMAN, PONNAMBIL VEEDU,
VATTATHARA DIVISION, KUMBAZHA,
MALAYALAPPUZHA.

R1 BY P.P. SMT. SREENA GEORGE.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

P. S. GOPINATHAN, J.
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Crl. R.P. No. 1627 of 2006
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Dated this the 11th day of October, 2012

O R D E R

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

CRRP 1627/2006 2

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.

CRRP 1627/2006 3

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

CRRP 1627/2006 4

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.

CRRP 1627/2006 5

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

CRRP 1627/2006 6

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

CRRP 1627/2006 7

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

CRRP 1627/2006 9

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,

CRRP 1627/2006 10

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

CRRP 1627/2006 11

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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