[2014] 13 S.C.R. 1266

S. MAHABOOB BASHA

THE STATE OF KARNATAKA

(Criminal Appeal No. 2115 of2014)

SEPTEMBER 23, 2014

[T. S. THAKUR AND R. BANUMATHI, JJ.]

Penal Code, 1860 - s.498A - Conviction under, of appellant-husband by Courts below - Justification - Held: C Justified - PW-1(complainantl victim) was subjected to cruelty by her husband (appellant) and also harassment to meet the unlawful demand of dowry- Essential ingredients of s.498A /PC were established - Prosecution adduced cogent evidence to prove that after his second marriage, the D appellant was ill-treating PW-1 who had no reason to prosecute the appellant after ten years of marriage- On facts, interference with concurrent findings of fact by the courts below not warranted.

E Sentence I Sentencing - Duty of the Court to pass appropriate sentence - Demand of dowry and harassment- Con vi c ti on uls. 498A /PC - On facts, sentence of imprisonment imposed on appellant-husband for conviction uls. 498A reduced to the period already undergone by him - F Penal Code, 1860 - s.498A.

Penal Code, 1860 - s. 498A - Cruelty to wife - Allegations of- Held: In such cases to bring home the guilt of the accused, it is not essential to examine independent witnesses - Witnesses -Appreciation of

Allowing the appeal, the Court

HELD:1. Evidence adduced by the prosecution clearly proves that PW-1 (complainant/ victim) was subjected to cruelty by her husband (appellant) and also H harassment to meet the unlawful demand of dowry and 1266

S. MAHABOOB BASHA v. THE STATE OF KARNATAKA 1267

the essential ingredients of Section 498A IPC are A established_. In cases of cruelty meted out to the wife to bring home the guilt of the accused, it is not essential to examine independent witnesses. Prosecution has adduced cogent evidence to prove that after his second marriage, the appellant was illtreating PW-1. PW-1 had B no reason to prosec\jte the appellant after ten years of marriage. [Paras 8, 9][1270-E-H; 1271-A-C]

2. Interference by the Supreme Court with concurrent findings of fact by the courts below is not warranted, except where there is some serious infirmity C in the appreciation of evidence and the findings are perverse. In the case at hand, there is no infirmity in the concurrent findings of the courts below convicting the appellant under Section 498A IPC. [Para 10][1271-C-E]

3. The conviction under Section 498A IPC where D

wife is subjected to cruelty, sentence imposed on the husband and in-laws should be commensurate with the charges and court should impose punishment befitting the offence. Considering the totality of the facts and E circumstances of the instant case, the sentence of imprisonment imposed on the appellant for conviction u/s. 498A IPC is reduced to the period already undergone by him and a fine of Rs. 2,00,000/- (Rupees two lakh only) is imposed. [Para 11, 12][1272-C-D; 1271-G-H; 1272-A]

Narsingh Prasad Singh v. Raj Kumar@Pappu & Ors., (2001) 4 SCC 522 - referred to.

CASE LAW REFERENCE

(2001) 4 SCC 522 referred to Para 11

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2115of2014.

From the Judgment and Order dated 29.10.2013 in CRLRP No. 2148 of 2010 passed by the High Court of Karnataka Circuit Bench at Dharwad.

. ..

A Shiv Prakash Pandey, Ms. Rekha Pandey, Advs. for the Appellant.

V. N. Raghupathy, Adv. for the Respondent.

Thi~ Judgment of the Court was delivered by

B R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the Order of the Karnataka High Court in Crl. R. P. No. 2148 of 2010 dated 29.10.2013, confirming the conviction of the appellant under Section 498A C IPC and reducing the sentence of imprisonment of one year to six months and enhancing the fine amount from Rs.3000/-to Rs.10,000/- and in default, to undergo simple imprisonment for two months.

3. Brief facts of the case are that, the appellant-first o accused is the husband of PW-1, Smt. Noorunnisa and their marriage was solemnized on 06.02.1994 and the couple has two daughters and one son. Sometime after the marriage, accused No.1 started physically torturing PW-1, and subjected her to cruelty by assaulting her and demanded/dowry of Rs.

E 50,000/- or a house from her parents. On 25.05.2001, at about

9.30 p.m., when PW-1 was in the house situated at Gandhi Nagar, Bellary, the appellant abused PW-1 and her father PW- 2 in filthy language and appellant pushed PW-2 and voluntarily caused simple hurt to him. Father of the appellant-accused F No.2 is alleged to have committed criminal intimidation py

threatening PW-2 with dire consequences. At the time of marriage of appellant and PW-1, the appellant and Accused No.2-father of the appellant are said to have accepted dowry of Rs.50,000/-, gold, silver, clothes etc. and further alleged to G have harassed PW-1 demanding more dowry from her parents.

On the complaint lodged by PW-1, case was registered against the appellant and his father under Sections 498A, 323, 504, 506 IPC read with Section 34 IPC and Sections 3 and 4 of Dowry Prohibition Act. On completion of the investigation, H charge-sheet was filed against the appellant and his father.

4. In order to prove the case of the prosecution, the A prosecution has examined 17 witnesses - PW-1 to PW-17 and marked documents Exts. P1 to P11. The accused were questioned under Section 313 Cr. P. C. about the incriminating evid.ence and they denied all of them. Upon consideration of the evidence, the trial court convicted the appellant and his B father for various offences and imposed imprisonment/fine as under:-

Accused.

Conviction Sentence/Fine imposed

Appellant/Al & Sec. 498A IPC One Year SI (each) c 2nc1 Accused . & Rs.3,000/· Fine (each) Appellant/Al & Sec. 323 and Rs.500/· & Rs.500/· 2nd Accused

504 IPC (each)

Appellant/Al & Sec. 506 IPC Six months SI (each) & 2nd Accused Rs.500/· (each) D Appellant/Al & Sec. 3 and Six months SI (each) 2nd Accused Sec.4 of Dowry Prohibition Act

Total fine amount of Rs.9,000/-was ordered to be paid as compensation to the complainant.

5. Being aggrieved, the appellant and his father S. Vali Sab preferred appeal before the Additional District and Sessions Court, Bellary (Fast Track Court-I). The appellate court set aside the conviction of appellant's father S. Vali Sab and acquitted him of all the charges. The conviction of the F appellant-accused No.1 for the offences punishable under Sections 498A, 323, 504, 506 IPC and Sections 3 and 4 of Dowry Prohibition Act and sentence of imprisonment and fine imposed on him was confirmed: Being aggr_ieved, the appellant preferred criminal revision before the High Court. G The High Court confirmed the conviction of the appellant under Section 498A IPC and reduced the sentence of imprisonment of one year to six months and enhanced the fine to Rs.10,000/-. The High Court acquitted the appellant of the charges under Sections 3 and 4 of the Dowry Prohibition Act.

6. Learned counsel for the appellant submitted that the appellant and the complainant led peaceful and harmonious life and the couple are having two daughters and one son and the charges of ill-treatment to the complainant-wife are false

and concocted, such allegations being made only out of anger B and frustration, as the appellant had married second time in the year 2001 and was living with his second wife. It was further submitted that the trial court convicted the appellant only on the basis of the evidence of PW-1(wife), P.W-2 (younger brother), PW-4 (mother of PW-1) and other interested C witnesses and their evidence do not inspire confidence of the court and the learned courts below ought not to have based the conviction on such interested testimony.

7. Learned counsel for the respondent-State submitted that the courts below recorded concurrent findings as to the D guilt of the appellant and the same do not suffer from any infirmity warranting interference by this Court.

8. PW-1-complainant/victim and PW-2brother of the complainant, PW-4- Mother of PW-1 have categorically E spoken about the demand of dowry and harassment meted out to the complainant. Evidence of PW-1, PW-2 and PW-4 clearly establish that the appellant-first accused harassed the complainant rPW-1), causing mental agony to her. Evidence adduced by the prosecution clearly proves that PW-1 was F subjected to cruelty by her husband and also harassment to meet the unlawful demand of dowry and the essential ingredients of Section 498A IPC are established.

9. It is brought on evidence that the appellant-first accused married second time and has begotten three children through G his second wife and on account of his second marriage, differences arose between the spouses and the appellant-first accused ill-treated PW-1. In cases of cruelty meted out to the wife to bring home the guilt of the accused, it is not essential to examine independent witnesses. As pointed out by the High H Court, the offence of ill-treatment, cruelty to the wife are

committed in closed-door, where we canhardly expect any A witness, much less independent witness. While deciding whether a woman was ill-treated by her husband or his relatives, various factors and circumstances are to be considered by the courts. The demand of dowry, physical or mental, cruelty shown towards wife, conduct of the husband and also the B conduct of the relatives, conduct complained of are all relevant.

Prosecution has adduced cogent evidence to prove that after his second marriage the appellant was illtreating PW-1. PW-

1 had no reason to prosecute her husband-appellant after ten years of marriage. As pointed out by the learned courts below, c

PW-1 was subjected to thorough cross-examination and despite the same, nothing was elicited from her to discredit her testimony.

10. Interference by the Supreme Court with concurrent findings of fact by the courts below is not warranted, except D where there is some serious infirmity in the appreciation of. evidence and the findings are perverse. We see no infirmity in the concurrent findings of the learned courts below convicting the appellant under Section 498A IPC. Insofar as conviction of the appellant under Sections 323 and 504 IPC is E concerned, only fine was imposed on him. Insofar as the conviction under Section 506 IPC, the appellant was sentenced to undergo SI for six months by the trial court and the same was confirmed by the appellate court. The judgment of the High Court is silent about the conviction of the appellant under F Section 506 IPC as confirmed by the appellate court and the sentence imposed on him for the said offence.

11. Coming to the quantum of sentence imposed on the appellant, the question of awarding sentence is a matter of discretion of the court and is to be exercised on consideration G of facts and circumstances of each case. The conviction under

Section 498A IPC where wife is subjected to cruelty, sentence imposed on the husband and in-laws should be commensurate with the charges and court should impose punishment befitting H

A the offence. In Narsingh Prasad Singh vs. Raj Kumar@ Pappu & Ors. (2001) 4 SCC 522, this Court emphasized that in case of conviction under Section 498A, it is the duty of the court to pass appropriate order of sentence.

12. The accused-appellant had remarried and has three B children through his second wife, who are to be educated. The

appellant through his first wife has two daughters and one son and one daughter is said to be pursuing engineering course.

The appellant has to take care of his aged parents. The appellant has undergone sentence of imprisonment for about C one month and the appellant is presently on bail. Considering the totality of the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant for conviction under Section 498A IPC is reduced to the period already undergone by him and a fine of Rs.2,00,000/-(Rupees D two lakh only) is imposed, in default of payment of fine, the

ppellant is to undergo imprisonment for five months. Insofar as the conviction of the appellant under Section 506 IPC, he was sentenced to undergo SI for six months and it is reduced to the period already undergone and the same is ordered to E run concurrently. The fine amount of Rs.2,00,000/- is payable

in two instalments. Rs.1,00,000/- is payable within four months from today and remaining Rs, 1, 00, 0001within six months thereafter. In default of payment of any one instalment of the amount, the appellant is to undergo the imprisonment as F aforesaid. The fine amount of Rs.2,00,000/- shall be paid to

PW-1, Noorunnisa as compensation under Section 357 Cr.P.C.

We direct the trial court/Principal Judicial Magistrate First Class, Bellary to issue notice to PW-1 Noorunissa, as and when the instalments are deposited and disburse the amount G to PW-1 Noorunissa.

13. The sentence of imprisonment imposed on the appellant is modified and the appeal is allowed accordingly.

Bibhuti Bhushan Bose Appeal allowed.