(Prayer: Criminal Appeal is filed under Section 374(2) of the Code of Criminal Procedure, to set aside the conviction and sentence imposed by the Learned Sessions Judge, Fast Track Mahila Court, Krishnagiri in S.C.No.113 of 2016, dated 28.11.2019 and allow the appeal.)
1. The case of the prosecution is that P.W.1/Swetha and the first accused got married on 16.05.2010. The second accused is the mother-in- law of P.W.1. After marriage, the first accused was torturing P.W.1, demanding Maruthi Suzuki Swift Car and also to convey the land in his name. The second accused also threatened P.W.1 that she would re-marry his son if the demands are not met. Six months before the complaint, both the accused had physically assaulted and pushed her down and smothered her with a pillow. On 05.04.2015 at about 8.00 P.M., when P.W.1 was at home, the first accused tried to hit her with a hot cooker-utensil found in the kitchen. When P.W.1 was trying run and escape, the second accused prevented caught hold of her and the first accused kicked her on the abdomen and also hit her on the face and she was bleeding in her ear and nose.
2. On the said complaint, a case was registered in Crime No.263 of 2015 and P.W.12 took up the case for investigation, completed the investigation and filed a final report, proposing that the accused be found guilty for the offences under Sections 498A, 307, 326, 506(ii) of IPC. The same was taken on record in P.R.C.No.55 of 2015 and upon the appearance of the accused and furnishing of copies, the case was committed to the learned District and Sessions Judge, Krishnagiri. The case was thereupon taken on file in S.C.No.113 of 2016 and was made over to the Trial Court.
3. The Trial Court, after considering the materials on record, framed charges for the offenses punishable under Sections 498A, 307, 326, and 506(ii) of IPC. Upon questioning, the accused denied the charges and stood trial.
4. To bring home the charges, on behalf of the prosecution, P.W.1 to P.W.13 were examined and Exs.P-1 to P-11 were marked. Upon questioning about the material evidence and incriminating circumstances on record under Section 313 of Cr.P.C., the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence.
5. The Trial Court, therefore, proceeded to hear the learned Additional Public Prosecutor and the learned Counsel appearing for the accused and by the Judgment dated 28.11.2019, while acquitting the accused for the offences under Sections 307 and 506(ii) of IPC and for the other offences under Section 498A of IPC and imposed Rigorous Imprisonment for a period of two years and fine of Rs.25,000/- and found both the accused guilty for the offence under Section 4 of the Dowry Prohibition Act, 1961 and imposed a sentence of one year Rigorous Imprisonment and to pay fine of Rs.10,000/-. The first accused was found guilty of the offence under Section 326 of IPC and was imposed with Rigorous Imprisonment for a period of five years and a fine of Rs.25,000/- and the second accused was found guilty of the offence under Section 326 of IPC r/w Section 109 of IPC, and was imposed with Rigorous Imprisonment for a period of five years and fine of Rs.25,000/-. Aggrieved by the same, the present appeal is filed before this Court.
6. Heard Mr.S.Karthikeyan for Mr.T.Panchatsaram, learned Counsel for the appellants and Mr.S.Vinoth Kumar, learned Government Advocate (Criminal side) appearing on behalf of the respondent.
7. Mr.S.Karthikeyan, learned Counsel for the appellants would submit that in this case, except for the sole and uncorroborated testimony of P.W.1, there is no direct evidence on record. P.W.9 and P.W.10 were belatedly included and they are interested witnesses, in any event, did not have direct knowledge about the incident. Even in the 161 statements of some of the witnesses were also not recorded, therefore, the flaw in investigation is fatal to the case of the prosecution. Further, he would submit that from the medical evidence, it cannot be established that the alleged injury was inflicted by the accused/first appellant herein. In any event, the learned Counsel for the appellants would submit that this is not the case where the appellants had used any deadly weapon. In the absence of the same, the punishment for the offence under Section 326 was erroneous. He would also rely upon the Judgment of the Hon'ble Supreme Court of India, in Prabhu Vs. State of Madhya Pradesh S.L.P.(Crl.) No.1418 of 2008 , dated 03.12.2008, morefully relying upon paragraph No.13 of the said Judgment, for the proposition that a person convicted under Section 326 of IPC, there must have suffered grievous hurt and that said grievous hurt has to be caused by dangerous weapons or means.
8. Per contra, the learned Government Advocate (Criminal side) would submit that in this case, the occurrence happened within the four walls of the home and therefore, P.W.1 was the injured witness and her version is corroborated by medical evidence. The fact remains that she has lost her hearing capacity to a great extent. The evidence of the parents of the victim, P.W.9 & P.W.10 and P.W.3 also corroborated with the evidence of P.W.1. Therefore, the Trial Court has rightly convicted the appellants and prays for dismissal of the appeal.
9. I have considered the rival submissions made on either side and perused the material records of this case.
10. P.W.1, the injured victim/wife has clearly and categorically deposed about the occurrence. P.W.1 has spoken about physical torture given to her and about the demand for dowry. The incident that occurred on 05.04.2015 has been clearly narrated by her. P.W.3 has deposed about the fact that the receipt of the information about the attack of P.W.1, they had reached the house of the Accused in Taxi being admitted in her hospital. The Doctor, who conducted Audiogram Test and issued the certificate that there was a severe hearing loss, is also examined as P.W.13. Therefore, on cumulative reading of the evidence, it is clear that both the accused have demanded dowry and the first accused had hit P.W.1 and caused grievous hurt to her and the second accused aided and abetted to the first accused. Therefore, both the accused are found guilty of the offence under Section 4 of the Dowry Prohibition Act.
11. However, as rightly contended by the learned Counsel for the appellants, in this case, the conviction under Section 326 is unsustainable, since the allegation is that the first accused used hands and legs, therefore, there were no deadly weapons or means of attack. Therefore, the conviction of the Trial Court under Section 326 of IPC, in respect of the first accused and Section 326 of IPC, r/w Section 109 of IPC, in respect of the second accused are modified as one under Section 325 of IPC, in respect of the first accused and Section 325 of IPC, r/w Section 109 of IPC, in respect of the second accused.
12. Now, coming to the question of sentence, during the course of hearing, the parties were present and this Court had also interacted with the parties. The victim submitted that in view of the physical torture, she cannot live together with the first accused/husband. Fearing social repercussions, she is not interested in any dissolution of marriage at present also. She is living on her own with two tender children. She has also filed a Civil Suit for partition of the properties in the name of the minor children. Per contra, the appellants and the learned Counsel would submit that the entire quarrel arose on account of the instance of P.W.1 for a separate residence.
13. Considering the overall facts and circumstances of the case, I am of the view that P.W.1 is to be paid substantial compensation. The said compensation amount without prejudice to her right for maintenance of herself or minors and the compensation which is now being given will not be taken into account for the said purpose and it is only a compensation for the suffering of the criminal offences, mentioned supra. It is represented across the bar with a total fine of amount Rs.1,20,000/- deposed by the accused. This apart at the time of grant of suspension of sentence on condition to deposit a sum of Rs. 1,00,000/- each was imposed on the accused and the same was ordered to re-deposited in any Nationalised Bank, the said sum is also deposited. In this case, both the accused have totally undergone imprisonment for 40 days. The same can be taken into account and each of the accused can be ordered to pay a sum of Rs.7,60,000/- (Rupees Seven Lakhs Sixty thousand only) as fine, of which, the accused can adjust the already deposited amount of Rs.1,20,000/- and the sum of Rs.2,00,000/- totally, a sum of Rs.3,20,000/- (Rupees Three Lakhs Twenty thousand only) already paid by them and have to pay the balance amount. Of the total fine amount of compensation, a sum of Rs.15 Lakhs can be ordered to be paid to P.W.1.
14. In view thereof, this Criminal Appeal is partly allowed on the following terms:-
(i) The conviction of the appellants for the offence under Section 4 of the Dowry Prohibition Act, is upheld;
(ii) The conviction of the first appellants for the offence under Section 326 of IPC, is modified as one under Section 325 of IPC;
(iii) The conviction of the second appellant for the offense under Section 326 r/w 109 IPC is modified as one under Section 325 r/w 109 IPC;
(iv) The period of imprisonment already undergone by the accused/appellants shall be treated as the substantial sentence of imprisonment for both the offences in respect of both the accused;
(v) The first accused shall pay the fine of Rs.10,000/- for the offence under Section 4 of the Dowry Prohibition Act and a sum of Rs.7,50,000/- for the offence under Section 325 of I
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PC., in all totalling to a sum of Rs.7,60,000/-; (vi) The second accused shall pay a file of Rs. 10,000/- for the offense under Section 4 of the Dowry Prohibition Act and a sum of Rs. 7,50,000/- for the offense under Section 325 r/w 109 of IPC; (vii) The accused are entitled to adjust the sum of Rs.3,20,000/- [Rs.1,20,000/- fine + Rs.2,00,000/- deposit] and shall pay the balance amount of Rs.6 Lakhs each within a period of four weeks from the date of receipt of a copy of this order; (viii) It is made clear that there shall be no further extension of time for depositing the above said fine amount; (ix) In default of payment of the said fine amount, both the accused shall undergo Rigorous Imprisonment for a period of six months, each; (x) Upon payment of the entire fine amount a sum of Rs.15,00,000/- (Rupees fifteen lakhs only) along with accrued interest in respect of the amount already invested in the Bank shall be paid as compensation to P.W.1/Swetha, without insisting on any formal application and upon verification and identity of P.W.1.