Shaik Khaja Mohinuddin, vs State Of A.P.,
2021 Latest Caselaw 4622 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                      CRL.R.C.No.976 OF 2006

JUDGMENT:

This Criminal Revision Case is directed against the judgment

of the learned III-Additional Sessions Judge (FTC-II), Khammam, in

Crl.A.No.27 of 2005, dated 12.01.2006, whereby the learned Judge,

confirmed the conviction and sentence of rigorous imprisonment for

a period of two years and a fine of Rs.1,00,000/-, in default, to suffer

simple imprisonment for a period of four months for the offence

punishable under Section 3 of the Dowry Prohibition Act, 1961,

imposed against the revision petitioner-A-1 by the learned

I-Additional Judicial Magistrate of First Class, Khammam, dated

28.04.2005.

Brief facts of the case are that the marriage of the revision

petitioner/A-1 with P.W.1 took place on 25.06.2000. At the time of

marriage, the parents of P.W.1 paid Rs.70,000/- cash, five tulas of

gold towards dowry and net cash of Rs.26,000/- for purchasing

scooter and after the marriage they led marital life amicably for

about five months. Subsequently, the revision petitioner/A-1 along

with other accused, who are the family members of the revision

petitioner/A-1, started harassing P.W.1 mentally and physically and

also demanding her to bring additional dowry of Rs.50,000/- and an

Auto from her parents and drove her out from the matrimonial

house. When the matter was placed before local elders, they

advised the accused not to harass P.W.1 and then P.W.1 went to her

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parents' house for delivery and gave birth to a male child on

15.04.2000. After delivery, the accused did not visit the parents'

house of P.W.1. A panchayat was held in the presence of local

elders and caste elders and on their advice P.W.1 and the revision

petitioner/A-1 started living in a rented house. On 26.08.2001, all

the accused beat P.W.1 indiscriminately and drove her out from the

house, demanding to bring additional dowry and since then P.W.1

was staying with her parents. Hence, P.W.1 lodged the complaint

before the police, basing on which a case in Crime No.3 of 2002 was

registered under Section 498-A of I.P.C. and Sections 3 and 4 of the

Dowry Prohibition Act and after completion of investigation the

police filed a charge sheet against the accused. The accused were

tried for the offences punishable under Sections 498-A of I.P.C. and

Sections 3 and 4 of the Dowry Prohibition Act.

The prosecution has examined P.Ws.1 to 7 and got marked

Exs.P1 and P7 to prove the guilt of the accused. On behalf of the

accused, neither oral nor documentary evidence was adduced. On a

perusal of the entire evidence, both oral and documentary, the trial

Court, while acquitting A-2 and A-3 for the offences with which they

were charged, found the revision petitioner/A-1 for the offence

punishable under Section 3 of Dowry Prohibition Act and

accordingly convicted and sentenced him to undergo rigorous

imprisonment for a period of two years and to pay a fine of

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Rs.1,00,000/-, in default, to suffer simple imprisonment for four

months. However, the revision petitioner-A1 found not guilty for

the offences punishable under Section 498-A of I.P.C. and Section 4

of the Dowry Prohibition Act and he was acquitted for the said

charges.

In an appeal preferred by the revision petitioner-A1, the

learned III-Additional Metropolitan Sessions Judge (FTC-II),

Khammam, confirmed the conviction and sentence imposed against

the revision petitioner-A1 for the offence punishable under Section 3

of Dowry Prohibition Act. Aggrieved by the same, the revision

petitioner-A1 preferred this criminal revision.

Heard learned Counsel for the revision petitioner, learned

Assistant Public Prosecutor for the respondent-State and perused

the record.

The point that arises for consideration is "Whether the

prosecution is able to prove that the revision petitioner/A-1, at the

time of marriage with P.W.1, received cash of Rs.70,000/-, five tulas

of gold and Rs.26,000/- for purchase of scooter as dowry and

thereby committed the offence punishable under Section 3 of the

Dowry Prohibition Act?

In the instant case, the revision petitioner-A1 was convicted

and sentenced for the offence punishable under Section 3 of the

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Dowry Prohibition Act. It is an admitted fact that the revision

petitioner/A-1 was married to P.W.1 on 25.06.2000 and P.W.1 lived

with him for some time at her in-laws' house. It is also apparent

from the record that at the time of lodging the F.I.R., the P.W.1 was

staying at the house of her parents and out of their wedlock, a male

child was born. Before proceeding further, it would be appropriate

to refer to Section 3 of the Dowry Prohibition Act, 1961, which reads

as under:-

"3. Penalty for giving or taking dowry.-- (1) 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.

(2) Nothing in sub-section (1) shall apply to, or in relation to,--

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.

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Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given."

Certainly, Section 3 of the Dowry Prohibition Act attracts only

in cases of giving or taking of the dowry. Relying upon the evidence

of P.Ws.1 to 3, who have categorically stated that at the time of

marriage cash of Rs.70,000/-, five tulas of gold and cash of

Rs.26,000/- for purchasing scooter were given to the accused and

Ex.P3-carbon copy of list of Jahez Articles, which contains the

signature of the revision petitioner/A-1, the trial Court convicted

the revision petitioner/A-1 for the offence punishable under Section

3 of the Dowry Prohibition Act.

Proviso (b) of sub-section (2) of Section 3 of the Dowry

Prohibition Act would show that a list has to be maintained with

regard to the presents given at the time of marriage in accordance

with the rules made under the Act and that where such presents are

made by or on behalf of the bride or any person related to the bride,

such presents are of a customary nature and the value thereof is not

excessive having regard to the financial status of the person by

whom, or on whose behalf, such presents are given.

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In the instant case, no where it is stated by P.Ws.1 to 3 that on

the demand made by the revision petitioner/A-1 such presents have

been given to him. It is the duty of the prosecution to establish that

the parents of P.W.1 have no capacity to pay such presents at the

time of marriage and that there is no evidence in this regard. Close

analysis of the entire evidence adduced by the prosecution clearly

reveals that the essential ingredients to constitute the offence under

section 3 of the Dowry Prohibition Act were not proved by the

prosecution.

Finding recorded by the trial Court as well as the appellate

Court to constitute the offence under Section 3 of the Dowry

Prohibition Act is contrary to the provisions of Section 3 of the

Dowry Prohibition Act. The Courts below imposed a punishment of

two years rigorous imprisonment and a fine of Rs.1,00,000/- to the

revision petitioner/A-1 while acquitting him for the offences

punishable under Section 498-A of I.P.C. and Section 4 Dowry

Prohibition Act. Therefore, the conviction and sentence imposed

against the revision petitioner/A-1 under Section 3 of the Dowry

Prohibition Act cannot be sustained and as such it is liable to be set

aside.

The Criminal Revision Case is accordingly allowed. The

conviction and sentence imposed against the revision petitioner/A-1

by the trial Court as confirmed by the appellate Court for the offence

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punishable under Section 3 of the Dowry Prohibition Act are hereby

set aside and the revision petitioner/A-1 is acquitted of the said

charge. Fine amount, if any, paid by the revision petitioner/A-1

shall be refunded to him.

_____________________ JUSTICE G. SRIDEVI

28-12-2021 Gsn