Karnataka High Court
Sri Mohammed Ayoob vs The State Of Karnataka on 29 November, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.1019 OF 2014
BETWEEN:
Sri Mohammed Ayoob,
S/o Late Ameer,
Aged about 34 years,
R/at now house of JC,
Chikkaballapura Prison,
Chikkaballapura.
...Appellant
(By Sri Hashmath Pasha, Senior Counsel for
Sri Nasir Ali, Advocate)
AND:
The State of Karnataka
Chintamani Rural Police Station,
Represented by
State Public Prosecutor,
High Court of Karnataka
Bengaluru-560001.
...Respondent
(By Sri Mahesh Shetty, HCGP)
This Criminal Appeal is filed under Section 374(2) Cr.P.C.
praying to set aside the order dated 28.10.2014 passed by the
Principal District and Sessions Judge, Chikkaballapura in
S.C.No.21/2008 convicting the appellant/accused for the
offence p/u/s 3, 4 and 6 of D.P.Act and u/s 498(A), 306 and
304(B) of IPC and etc.
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This Criminal Appeal having been heard & reserved on
31.10.2022, coming on for pronouncement this day, the
Court pronounced the following:
JUDGMENT
Rural Police, Chintamani, charge sheeted two accused persons for their trial in relation to offences punishable under sections 3, 4 and 6 of Dowry Prohibition Act and sections 498A, 304B, 302 and 306 IPC. Initially, the trial court framed charges for the offences punishable under sections 3, 4 and 6 of Dowry Prohibition Act, and sections 498A, 304B and 306 IPC. Charge under section 302 IPC was raised at later stage.
2. The prosecution case is this :
Reshma Taj, daughter of PW2 and PW3, was given in marriage to accused. Their marriage was solemnized on 5.6.2005. She died on 7.10.2007. PW2 made a report of death of his daughter to the police alleging that three months before the marriage, there took place a negotiation in connection with the marriage and, at that :: 3 ::
time, accused made a demand for cash of Rs.1,00,000/-, 250 grams of gold, a CT100 Bajaj motor cycle and house hold articles. PW2 agreed for giving cash of Rs.80,000/-
and meeting his other demands. At the time of engagement, the demand of accused was met and marriage was thereafter performed. When Reshma Taj went to her husband's house after the marriage, she was treated well for a few days and then the accused started demanding that she should go to her parents' house and bring additional dowry in the form of cash and gold. In this connection she used to be subjected to physical and mental torture, and coming to know of these developments, PW2 somehow was able to arrange Rs.25,000/- for the first time and Rs.15,000/- for the second time for being given to the accused and a silk saree priced at Rs.1,00,000/- for the sake of his daughter. Even then the demand by the accused did not stop and several panchayats were held in vain. On 7.10.2007 at 1.20 PM, accused compelled his wife to bring Rs.80,000/- from her parents house and as she refused, she was set :: 4 ::
on fire by pouring petrol on her body. Reshma Taj succumbed to the injuries.
3. Though the above were the allegations made in the FIR, according to investigation the death of Reshma Taj was suicidal one and because the death occurred within seven years of marriage in connection with dowry demand, the accused were charge sheeted for the offence under section 304B and other offences mentioned above.
4. The trial court, assessing the evidence of eight witnesses examined by the prosecution, and documents as per Exs.P1 to P14 and 7 material objects, MOs 1 to 7, found that the prosecution failed to prove its case against second accused and therefore acquitted him of all the offences. So far as the appellant who is accused No.1 is concerned, the trial court held that the charge against him under section 302 IPC was not proved and consequently he was acquitted of it. However, the trial court found the appellant guilty of the offences under sections 498A, 306 and 304B IPC and sections 3, 4 and 6 of Dowry Prohibition :: 5 ::
Act. Therefore this appeal by the first accused who is referred to as 'accused' hereinafter for the sake of convenience.
5. I heard the arguments of Sri Hashmath Pasha, learned senior counsel for the accused and Sri Mahesh Shetty, learned High Court Government Pleader for the State.
6. The trial court has recorded the reasons that the oral testimonies of PWs1 to 3 is believable. They have clearly stated that accused received dowry in the form of cash and jewellery before the marriage and did not return the same after the marriage or within three months after the death of his wife and thus the offences under sections 3, 4 and 6 of the Dowry Prohibition Act would get established.
6.1. In regard to harassment which culminated in the death of Reshma Taj, it is held by the trial court that merely because PWs1 to 3 were respectively the brother, :: 6 ::
father and mother of Reshma Taj, their evidence cannot be disbelieved and what the Supreme Court has held is that if the witnesses are the close relatives of the deceased, their evidence requires a strict scrutiny. Having opined so, the trial court further proceeded to hold that there was no dispute that the death of Reshma Taj was unnatural and it occurred within seven years of marriage. Ex.P9, the post mortem report and the evidence of PW6 would fortify the fact that death was unnatural. Sections 113A and 113B of the Indian Evidence Act would provide for presuming that soon before death the deceased was subjected to cruelty which led her to commit suicide. Now in this background if the evidence of PWs1 to 3 is subjected to scrutiny, their evidence would disclose that Reshma Taj was being harassed and tortured by accused for the sake of dowry even after the marriage. And it becomes further clear from the testimony of PW1 that accused used to harass Reshma Taj by telling her that he would have received more cash in the form of dowry had he married another girl and when a complaint was made :: 7 ::
to Masjid in regard to harassment in connection with demand for dowry, accused sought excuses saying that he would not repeat the same. This aspect becomes clear from Exs.P3 and P5 (Exs.4 and 6 - English translations). These being the testimonies of PWs 1 to 3, the defence has failed to discredit them in anyway and rebut the presumption. The death occurred in the house of the accused. The burden was on him within the meaning of sections 101 and 106 of the Evidence Act to explain as to how the unnatural death occurred. He did not give any explanation. In this view the prosecution was able to prove that accused subjected his wife Reshma Taj to cruelty for the sake of dowry and thereby the offences under sections 498A, 304B and 306 IPC would get established.
7. Sri Hashmath Pasha, learned senior counsel for accused assailed the findings of the trial court highlighting the following points :
:: 8 ::
7.1. While there was no doubt that Reshma Taj committed suicide in the house of the accused within seven years of marriage, the trial court should not have believed the testimonies of PWs1, 2, 3 for want of corroboration from independent witnesses. In Ex.P1 the names of Shafiuddin, a Zilla Panchayat member and A.R.Noor are written stating that they were present at the time talks were held before the marriage took place and when the accused demanded for dowry in the form of cash and jewellery. For not examining them, the prosecution case should not have been believed.
7.2. Exs. P3 and P5 are the two documents that the prosecution relied on for proving its case in regard to harassment on Reshma Taj by accused. Exs.P4 and P6 are the English translations of Exs.P3 and P5. Ex.P3 was a letter written in Urdu on the instructions of Reshma Taj to the Masjid committee. In that letter, she did not mention that she was being subjected to harassment by her husband for the sake of additional dowry; that letter :: 9 ::
indicates that there was no compatibility between Reshma Taj and the accused. The letter also indicates that accused had a grievance that actually the sister of Reshma Taj was shown and proposed to be given in marriage to him, and instead Reshma Taj was married to him and therefore he expressed his desire to marry her sister. He has also complained that the accused wanted to give his sister in marriage to younger brother of Reshma Taj and PW2 did not agree for that. Quarrels used to take place between them for these reasons and not for the sake of dowry demand. No doubt Ex.P5 discloses that accused sought apologies, but if the prosecution based its case on these two letters, charge sheet could not have been filed for the offences under the Dowry Prohibition Act and also the offence under section 304B IPC.
7.3. In regard to harassment on Reshma Taj, the best witnesses would have been the neighbours of the accused. No independent witness was examined by the prosecution to prove that accused was subjecting his wife :: 10 ::
to cruelty. PWs1, 2 and 3 have given evidence with regard to harassment being carried away by emotions. In this view there is no believable evidence to arrive at a conclusion that accused was harassing his wife for the sake of dowry which led to her committing suicide.
7.4. Sri Hashmath Pasha pointed out major lapses in the investigation. In this regard his argument was that the police went to village before 1.00 PM on the date of incident and the dead body was shifted to Chintamani.
The police failed to notice the circumstances that were available at the earliest point of time. It has come in evidence that Reshma Taj had a mobile telephone and therefore the investigating officer could have collected the call details to draw conclusions before filing the charge sheet. PW3 has stated that the accused wanted money for his silk business and he asked his wife to bring money from parents' house. Therefore the evidence of PW3 falsifies the case of the prosecution that the accused put forward demand for dowry. In this regard his argument :: 11 ::
was that if accused wanted financial assistance for his business, it cannot be called a demand for dowry.
7.5. He submitted that though the cross-examination of the prime witnesses appears to be not effective, the prosecution case deserves dismissal as it does not stand on its own strength. This being the evidence, the trial court should not have recorded conviction against the accused and he should have been acquitted.
8. Sri Mahesh Shetty, learned Government Pleader, argued that in Ex.P1, it is very specifically mentioned that accused demanded for dowry before the marriage, received it and put forward demand for additional dowry after the marriage. The evidence of PW1 to PW3 in regard to demand for dowry before and after the marriage has not been discredited in anyway by the defence. Though PW1 to PW3 are the brother, father and mother of the deceased Reshma Taj, there are no reasons to discard their testimonies just because independent witnesses were :: 12 ::
not examined. There is no rule that testimonies of related witnesses should always be discarded.
8.1. Reshma Taj committed suicide within seven years of marriage. Defence theory is that she caught fire due to stove burst. If really the stove had burst, the investigating officer would have collected the pieces of the burst stove at the time of drawing mahazar. This was a defence without any basis. In the inquest panchanama, PW5, the Tahsildar has clearly noted that the death of Reshma Taj was found to be in connection with dowry demand. Exs.P3 and P4 are only supportive documents and the entire case of the prosecution does not rest exclusively on them. At the time accused gave statement when examined under section 313 Cr.P.C, he stated that he had gone out of his house in connection with his business, but it was a false statement. He was supposed to explain as to how the death occurred inside his house and his silence therefore should be viewed against him.
With these points, the learned Government Pleader :: 13 ::
submitted that the trial court applied its mind for recording conviction and hence the appeal deserves to be dismissed.
9. I have considered the arguments. The accused has stood convicted for the offences under sections 3, 4, 6 of Dowry Prohibition Act, and sections 498A, 306 and 304B of IPC. Unless harassment on the deceased Reshma Taj in relation to demand for dowry is established, conviction of the accused for the offence under section 304B IPC cannot be sustained, and in order to sustain conviction for these two offences, the offences under sections 3 and 4 of Dowry Prohibition Act should get established. If a woman is subjected to cruelty by a husband or his relative, he may be punished in accordance with section 498A of IPC. Explanations (a) and (b) give the meaning of the word cruelty in two contexts.
According to Explanation (a), willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health :: 14 ::
(mental or physical) amounts to cruelty. Explanation (b) states that harassment of a woman to coerce her or her relative to meet demand for property or valuable security amounts to cruelty, and if harassment is meted out to a woman for her failure to meet the demand by her husband or husband's relative also falls within the realm of the meaning of the word 'cruelty'.
10. Subtle difference between Explanations (a) and
(b) may be noted here. Explanation (a) refers to any kind of cruelty on a woman by her husband or his relative, but does not include harassment in connection with demand for dowry. If cruelty within the meaning of Explanation
(a) is proved, accused can be punished for the offence under section 498A, and if a woman is driven to commit suicide on account of this kind of cruelty, the accused can be punished for offence under section 306 IPC. Cruelty as of the type (b) includes not only harassment connected with demand for dowry, but also other kind of demand for property or valuable security. If harassment is in :: 15 ::
connection with dowry then offences under sections 3 and 4 of Dowry Prohibition Act should be proved; suicidal death of a woman in a situation like this attracts punishment under section 304B IPC, not section 306 IPC.
But if a woman commits suicide on account of harassment to meet unlawful demand for a property or valuable security other than dowry, the accused can be punished for the offences under section 498A and section 306 IPC. This being the position of law, now it is to be examined whether the evidence brought on record by the prosecution before the court was properly analysed by the trial court for recording conviction for the aforementioned offences. But, before that, I find it apt to refer to a judgment of the Supreme Court in the case of Sharad Birdhichand Sarda vs State of Maharashtra [(1984) 4 SCC 116] cited by Sri Hashmath Pasha. This judgment throws light on the circumspection which the courts have to exercise in a case of this type. It is held, "48. Before discussing the evidence of the witnesses we might mention a few preliminary :: 16 ::
remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
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11. In the case on hand, the prominent witnesses are PWs1, 2 and 3, being the brother, father and mother respectively of Reshma Taj. The trial court has believed the testimonies of these witnesses. There is nothing wrong in placing absolute reliance on the testimonies of related witnesses provided the testimonies are trustworthy and free of interestedness, in the sense that the oral evidence must appear to be not exaggerated or filled with revengeful attitude as has been observed in the referred judgment of the Supreme Court.
12. PW1 and PW2 have stated that during negotiations held prior to marriage, accused demanded for cash of Rs.1,00,000/-, 250 grams of gold, a CT-100 Bajaj Scooter, two rings, a bracelet, a gold chain and household articles, and they agreed for giving cash of Rs.80,000/- and meeting other demands. They have also deposed that they gave cash of Rs.80,000/- and other items. It is found in the deposition of PW1 that Bajaj Scooter was not given either before or at the time of :: 18 ::
marriage, but when accused started ill-treating his sister, cash of Rs.45,000/- was given instead of a vehicle. The variation found in deposition of PW3 is that she does not state about demand put forward by accused prior to marriage, but however she has stated that cash of Rs.50,000/- was given to him besides other items. In regard to this evidence of PW1, PW2 and PW3, there is no corroboration from independent witnesses. If PW1 has stated about the presence of one Noor Pasha from their side at the time of talks held prior to marriage, PW2 has stated that persons namely Shabbir and Mohammad Gouse participated from the side of accused. None of them was examined. Though it may be stated that PW1 to PW3 are the better persons than others to speak about demand for money and other things before the marriage was held, I will give reasons later as to why there was necessity to examine an independent witness in the context of situation of this case.
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13. Actual allegation is that a few months after the marriage, accused started demanding for money as additional dowry and in that connection he started harassing his wife. PW1 and PW2 have deposed so. They also refer to a complaint made to Masjid Committee when the accused did not stop his demand and harassment of Reshma Taj although they had met his demand two or three times. Exs.P3 to P6 are the documents marked through PW1. Ex.P3 and Ex.P5 are in Urdu language, and Ex.P4 and P6 are their translations. Except giving a suggestion that Ex.P3 and Ex.P5 are created, they are not otherwise disputed. The tenor of evidence given by PW1 and PW2 shows that Masjid Committee had to be approached because of ill-treatment meted out to Reshma Taj by accused in connection with dowry demand. But if Ex.P3 is perused, what can be made out is, it altogether depicts a different reason for ill-treatment of Reshma Taj.
Ex.P3 was submitted by her to Masjid Committee complaining against husband. If demand for additional dowry was the reason for cruelty on her, she would have :: 20 ::
definitely mentioned about it in Ex.P3, and it is needless to say that she would have stated about demand made by her husband prior to or at the time of marriage. Aptly applicable to a situation like this is the judgment of the Supreme Court in Girish Singh Vs. State of Uttarkhand [(2020)18 SCC 423], which is cited by Sri Hashmath Pasha. It is held, "44. We have already extracted the letters. It is amply clear that there is no reference about any harassment or cruelty on account of dowry in those letters. PW4, in fact, deposes that he cannot tell the reason that why any fact of dowry harassment has not been written in those letters. He admits that those letters were written in reply to the letters written by the deceased. Significantly, the two letters written by the deceased are not produced by the prosecution. The reason for non-production is, they were misplaced during shifting of the house. Even, accepting that those letters were misplaced, the question whether they contained allegation of harassment due to dowry, should have been :: 21 ::
resolved with reference to the letters admittedly sent by PW4 to the deceased within a few days of the receipt of the letters. In other words, a reasonable view would be that as reference to any harassment regarding dowry is conspicuous by its absence in the letters written by PW4 to the deceased. There were no allegations of harassment on account of dowry in the letters written by the deceased to her father-PW4. In this regard, the High Court, in the impugned judgment, has proceeded to ignore this vital aspect and proceeded on the basis that the averments made by the deceased of the cruelty caused by the appellants were mentioned in the letters sent by the deceased and letters written by PW4, are not helpful to resolve this issue. The last of the two letters written by PW4-father of the accused is dated 20.03.1991. The death took place on 05.06.1991. Even, in the letter written by PW4, letter dated 28.05.1991, in an envelope addressed to his son, there is no mention about any harassment or cruelty on account of dowry demand. He only says to ask the deceased not to worry and not to send her even if anybody comes to call her. The High :: 22 ::
Court, however, still takes the view that dowry related harassment was mentioned in letters sent by the deceased which are not even produced.
45. We are of the view that this approach, particularly, in an appeal against acquittal is clearly unacceptable and cannot be approved."
14. It is quite clear that the trial court has not read Exs. P3 to P6. If these letters or representations had been read, it would have been possible for the trial court to assess the oral testimonies of PW1 and PW2 properly.
Then another major discrepancy in evidence can be pointed out here. If PW1 and PW2 have deposed that accused demanded for dowry after marriage, PW3 the mother of Reshma Taj has deposed that the accused wanted money for his business in silk. She has not deposed that accused was unhappy for not meeting his demand for dowry. Therefore in view of this kind of incongruence in the evidence of PW1, PW2 and PW3, as has been observed above, even with regard to demand for :: 23 ::
dowry prior to marriage corroboration from independent witnesses was necessary. As contents of Ex.P3 and testimony of PW3 falsify the testimonies of PW1 and PW2 in regard to demand for dowry after the marriage, the allegations against the accused relating to offences under sections 3, 4 and 6 of Dowry Prohibition Act do not stand and consequently the offence under section 304B also does not stand.
15. Notwithstanding the foregoing reasons, it can still be held that conviction of the accused for the offences under sections 498A and 306 IPC can be sustained, for the reasons which I delve upon now; Of course, the trial court has not dealt with the issue from this angle. The scope of section 498A IPC has already been discussed, Explanation
(a) of section 498A is applicable here. In addition, section 113A of the Evidence Act can also be invoked. This section helps the court to presume that the husband of the woman or his relative abetted that woman to commit suicide, and in order to draw presumption, the essential :: 24 ::
ingredients to be present are - suicide of a woman within seven years from the date of marriage, cruelty on that woman by her husband or his relative and existence of other circumstances. This is a rebuttable presumption. In this context, it is useful to refer to the judgment of the Supreme Court in Ramesh Kumar vs State of Chhattisgarh [AIR 2001 SC 3837], where it is held that, "12. This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house.
However still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of :: 25 ::
Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory, it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. The consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - 'The other circumstances of the case' used in Section 113-A suggests the need to reach a :: 26 ::
cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'May presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says - 'whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.'
16. Keeping in mind these principles, if the case is examined, firstly it appears that there is no dispute that Reshma Taj committed suicide within seven years from the date of her marriage with the accused. Then with regard to cruelty meted out on Reshma Taj, the evidence of PW1, PW2 and PW3 can be believed. As their evidence regarding dowry related harassment is held not believable, a question whether their evidence can be acted upon against the accused for other type of cruelty, arises. As :: 27 ::
an answer to this, reliance may be made to a decision of the Supreme Court in K.Prema S. Rao and Others vs Yadla Srinivasa Rao and Others [AIR 2003 SC 11]. It is held, "16. The evidence which has been found acceptable by the courts below against accused No. 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death "otherwise than under normal circumstances". To attract the provisions of Section 304B IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment 'in connection with the demand for dowry'. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was 'not in connection with any demand for dowry.' One of the main ingredients of the offence of "demand :: 28 ::
of dowry" being absent in this case, the High Court cannot be said to have committed any error in acquitting accused No. 1 for offence under Section 304B, IPC.
17. We however, find that the same evidence on record which was held reliable to convict accused No. 1 for offence of 'cruelty' under section 498A, IPC, clearly makes out a case for his conviction for offence of abetting suicide under Section 306, IPC read with section 113A of the Evidence Act. Section 498A makes cruelty by husband to wife as a punishable offence......"
(emphasis supplied)
17. Explanation (a) to section 498A requires proof of wilful conduct. Conduct can be proved; witness can speak about it, but it is not possible to expect direct evidence for the conduct which is 'wilful'. Therefore it is a matter of inference from other proved facts, or it is a matter of presumption. In this context, section 113A of Evidence Act is applicable. In the case of Satish Shetty vs State of Karnataka [AIR 2016 SC 2689], the Hon'ble Supreme Court has held, :: 29 ::
"24. Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three-Judge Bench of this Court in the case of K. Prema S. Rao and Anr. (Supra). Further, the High Court has given good reasons on the basis of facts brought on record through evidence for exercising the discretion of invoking the presumption under Section 113A of the Evidence Act and thereafter it has discussed in detail the explanations given by the appellant in the initial version by way of Unnatural Death Report as well as the later explanations. The High Court found the later explanations unacceptable and the initial explanation that the deceased committed suicide because she was not permitted to go to her mother's place does not inspire confidence and has rightly been rejected by the High Court. Only for such a trivial matter, a hale and hearty young woman :: 30 ::
having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. The appellant not only gave absolutely no explanation for the injuries on the person of the deceased, rather he chose to conceal them by keeping mum. Clearly the appellant failed to rebut the presumptions raised against him under Section 113A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different view."
(emphasis supplied)
18. Here in this case, it cannot be said that their deposition as to post marriage cruelty is unbelievable. And to some extent the evidence of PW3 is helpful in this regard. She has deposed that accused quarrelled with her daughter in her presence. PW2 has also deposed that his daughter used to tell him about harassment whenever she made telephone calls to him. Exs.P3 and P5 are the proofs with regard to cruelty and other circumstances. Gist of Ex.P4 which is the Kannada translation of Ex.P3 is as follows :
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"The accused looked after Reshma Taj for about a month after marriage. Then he started irking her taking silly issues. His main grievance was actually that the younger sister of Reshma Taj was proposed to be given in marriage to him, instead marriage was performed with Reshma Taj, for which he was unhappy and he expressed his desire to marry her sister also and he started looking at her younger sister with a bad intention. She did not inform this matter to her parents, yet they came to know of it some how and felt very bad. Then he wanted to give his younger sister in marriage to her younger brother. Her father did not agree for this, and therefore he started threatening to divorce her. He also started taunting her saying that she was short and not good looking. He also tried to marry another girl. Even he did not care for the advisory words of his father. Harassment on her increased gradually. He scolded her father in front of all when the latter came to attend 'Chahalam' function which was arranged after the death of father of accused".
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19. Giving all these details, she approached Masjid committee with a representation, Ex.P3 dated 05.02.2007. On 16.03.2007, the members of Masjid committee held a panchayat in the presence of accused and at that time he sought apology for all his misdeeds which is evidenced by Ex.P5 (Kannada Translation Ex.P.6). Therefore these documents, which are not at all disputed by the accused, reflect on the conduct of accused in treating his wife. PW1, PW2 and PW3 have stated that the accused kept quite for a month after the panchayat and again started ill-treating his wife. The cross- examination of these three witnesses is very ineffective, and there are no reasons to discard their testimonies. For these reasons, even if independent witnesses were not examined by the prosecution, it cannot be considered to be fatal.
20. The other circumstance is Reshma Taj committed suicide in the house of accused. Defence is that she caught fire due to stove burst, this defence just remained in the form of a suggestion without any :: 33 ::
material. It is not the defence that Reshma Taj committed suicide being very sensitive or over reactive or having gone to depression. If the testimonies of PW1, PW2 and PW3 to this extent and Ex.P3 and Ex.P.5 are considered, certainly presumption under section 113A of Evidence Act can be raised. The accused has failed to rebut the presumption. If there was some other reason within the knowledge of accused, he could have explained it when he was examined under Section 313 Cr.P.C. All these circumstances clearly fit into meaning of the word cruelty'' as found in Explanation (a) to section 498A IPC. And it can be inferred that the conduct of accused was as such that Reshma Taj found no other way but to end her life herself. Therefore the conviction of accused for the offences under Section 498A and Section 306 IPC can be sustained.
21. Then as argued by Sri Hashmath Pasha, the investigation is not free of lapses, but I do not think they can be given importance. What was highlighted by him :: 34 ::
was procedural lapses, not such kind of a lapse as to result in failure of justice. If lapses were so serious as to vitiate the whole investigation, the defence counsel could have questioned the investigating officer while cross- examining him. If such an issue is raised for the first time in appeal, no importance can be given to it.
22. The last point of argument of Sri Hashmath Pasha was to confine the sentence of imprisonment to the period the accused has already spent in jail in case the conviction for the offence under section 498A is sustainable.
23. The trial court has imposed rigorous imprisonment of two years and fine of Rs.2,000/- for the offence under section 498A IPC; and rigorous imprisonment for seven years and fine of Rs.5,000/- for the offence under section 306 IPC. For the offence under section 306 IPC, the imprisonment period may extend up to 10 years, it does not prescribe a minimum imprisonment period. Therefore having regard to overall :: 35 ::
circumstances, the sentence imposed by the trial court for the offence under section 498A IPC can be retained and sentence of rigorous imprisonment for the offence under section 306 IPC can be reduced to three years, without altering the fine amount.
24. With the above discussion, the following :
ORDER
(a) Appeal is partly allowed. The judgment of conviction for the offences under sections 3, 4 and 6 of Dowry Prohibition Act and section 304B IPC is set aside, the accused is acquitted of these offences.
(b) Conviction of the accused for the offence under sections 498A and 306 IPC is sustained.
Sentence imposed by the trial court for the offence under section 498A IPC is sustained. But the sentence for the offence under section 306 IPC is reduced to three years rigorous imprisonment. Fine of Rs.5000/- is sustained, :: 36 ::
and imprisonment for default in paying fine is reduced to four months.
(c) The sentence for both the offences run concurrently and period of the imprisonment already undergone by the accused is set off.
The accused shall surrender before the trial court within 15 days from today to serve remaining part of sentence.
Sd/-
JUDGE ckl/sd-
:: 37 ::
IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SRI MOHAMMED AYOOB VS. THE STATE OF KARNATAKA] SHKJ 14.12.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON I.A.NOs.2/2022 & 3/2022 This appeal was disposed of on 29.11.2022, partly allowing the appeal preferred by the accused. His conviction for the offences under Sections 3, 4 and 6 of the Dowry Prohibition Act and Section 304B of IPC was set-aside recording acquittal, but his conviction for the offences under Sections 498A and 306 of IPC was sustained.
However, the sentence of imprisonment imposed on him by the trial court for the offence under Section 306 of IPC was reduced to three years from seven years while maintaining the sentence in connection with offence under Section 498A of IPC.
2. After disposal of the appeal, on 09.12.2022, learned counsel for the appellant filed :: 38 ::
an application, I.A.No.2/2022 under Sections 3 and 4 of Probation of Offenders Act ('PO Act' for short) and prayed for releasing the appellant on probation. In the application, it is stated that the incident occurred in the year 2004 (but the correct date of death of the wife of the appellant is 07.10.2007) and as of now 15 years have passed.
In the interregnum, the appellant married another woman. He has two school going children. He is the only bread earner of the family and if at this stage, appellant is sent to jail, the children will become orphans and the whole family will suffer. It is also stated that the appellant has no criminal antecedents and having regard to all these circumstances, it is necessary in the ends of justice that appellant should be released on probation by applying Sections 3 and 4 of PO Act.
3. Yesterday, i.e., on 13.12.2022, when I.A.No.2/2022 was being heard further, learned counsel for the appellant filed another application, :: 39 ::
i.e., I.A.No.3/2022 under Section 482 of Cr.P.C. for recalling the order dated 29.11.2022 on the sentence in order to invoke the provisions of Probation of Offenders Act.
4. Sri Hashmath Pasha, learned senior counsel for the appellant argued on I.A.No.2/2022 on 12.12.2022 and 13.12.2022. At the cost of repetition, it is stated that I.A.No.3/2022 was filed during arguments on I.A.No.2/2022. The important points that Sri Hashmath Pasha highlighted are;
When the appeal was being heard on merits, the court expressed an opinion that at least there was a case for sustaining the sentence in relation to offence under Section 498A of IPC and therefore he had to plead for giving set-off to the period the appellant had already spent in jail.
:: 40 ::
Before modifying the sentence for the offence under Section 306 of IPC, the appellant ought to have been heard on the question of sentence in the sense to examine the extension of benefit under Section 4 of PO Act.
Merely for the reason that the counsel did not argue on the question of applying the Probation of Offenders Act, it does not mean that court is powerless to extend the benefit even after judgment is pronounced.
Ends of justice requires release of appellant on probation because he has two school going children and a wife who is just managing the household.
And that appellant has no criminal
antecedents. He has produced some
:: 41 ::
documents in support of this
contention.
5. When Sri Hashmath Pasha was
questioned by me as to how his application under Sections 3 and 4 of PO Act was maintainable in view of Section 362 of Cr.P.C. he submitted that the consideration of the applications would not amount to reviewing the judgment or altering the sentence as he had not sought review or alteration of the judgment or sentence. He further submitted that retaining the sentence, appellant could be released on probation by calling upon him to execute a bond for his good behaviour and if he breaches the conditions of the bond, the sentence can be imposed on him at a later stage. In support of his arguments, he placed reliance on certain judgments which I will refer to later.
6. On I.A.No.3/2022, his submission was that in spite of the fact that sentence is reduced to :: 42 ::
three years, for the purpose of examining as to applicability of the provisions of Sections 3 or 4 of PO Act, the order can be recalled. Recalling is for a limited purpose. He argued that there is a difference between reviewing the judgment or order, and recalling the same. In this connection he argued that because he was not heard on behalf of the appellant even before reducing the sentence of imprisonment from seven years to three years in relation to offence under Section 306 of IPC, an opportunity should be provided to him by recalling the order. If such an order is passed, it only amounts to exercising inherent power under Section 482 of Cr.P.C. which powers can be always exercised by the High Court even while deciding an appeal or a revision petition.
There is no bar for even exercising the jurisdiction under Article 226 of the Constitution of India. Therefore he argued for allowing the two applications and examining the case for releasing :: 43 ::
the appellant on probation under Section 4 of PO Act.
7. Sri Mahesh Shetty, learned High Court Government Pleader opposed the applications by arguing that once the court pronounces judgment, it cannot entertain any further application even to release the appellant/accused under Section 4 of PO Act. It amounts to reviewing the order which is not permitted under Section 362 of Cr.P.C. He further argued that the appellant did not argue before the trial court that he should be given the benefit under the provisions of Probation of Offenders Act. When he did not avail the opportunity in the court of first instance, the appellate court while deciding an appeal against conviction judgment need not hear the appellant on the sentence and applicability of the provisions of Probation of Offenders Act. If I.A.No.3/2022 is granted, indirectly it amounts to reviewing the :: 44 ::
judgment. Therefore he argued for dismissing both the applications.
8. The arguments give rise to following questions to be answered :
(i) Whether this court can entertain application like I.A.2/2022 after disposal of the appeal on merits?
(ii) Whether the appellant was
required to be heard on the
sentence in appeal against
judgment of conviction?
9. Before answering these questions it is necessary to refer to authorities cited by Sri Hashmath Pasha and examine whether they have any application in the present context.
9.1. The facts in Lakhvir Singh and Others v. State of Punjab and Another [(2021) 2 SCC 763] show that the appellants therein approached :: 45 ::
the Supreme Court by preferring a Special Leave Petition after their appeal against conviction judgment was dismissed by the High Court. Counsel for respondent No.2 made a submission about the amicable settlement of the dispute, but the counsel for respondent No.1 submitted that the sentence of imprisonment imposed on the appellant for the offence under section 397 IPC could not be reduced below seven years, and at that time, the appellant's counsel sought benefit under P.O. Act. The Hon'ble Supreme Court entertained the submission and ordered for release of appellant therein under P.O Act. Thus the circumstances are completely different from the circumstances in the instant case.
9.2. In Lakhanlal @ Lakhan Singh vs State of Madhya Pradesh [(2021) 6 SCC 100], the Hon'ble Supreme Court discussed the scope of Section 360 of Cr.P.C. and Sections 3, 4 and 6 of Probation of Offenders Act, 1958. The accused :: 46 ::
was convicted for the offence under Section 325 read with Section 34 of IPC, along with two other accused. In the appeal to the High Court, judgment of conviction was confirmed and sentence was maintained. At that time the High Court held that Section 360 of Cr.P.C. could not be made applicable as the matter would fall under Sections 3 and 4 of PO Act. In this context the Hon'ble Supreme Court dealt with the scope of Section 360 of Cr.P.C. and Sections 3 and 4 of PO Act and ultimately held that the accused could be released in terms of Section 360 of Cr.P.C. This judgment does not discuss as to maintainability of the application under Sections 3 and 4 of PO Act, once the judgment of conviction is upheld and sentence is maintained or modified. 9.3. Som Dutt and Others vs State of Himachal Pradesh [(2022) 6 SCC 722], the facts show that accused was convicted and sentenced by the Judicial Magistrate First Class for :: 47 ::
the offence under Section 379 read with Section 34 of IPC. The Additional Sessions Judge affirmed the judgment of conviction and sentence. The High Court dismissed the revision petition.
Thereafter a Special Leave Petition was preferred to the Supreme Court. The Hon'ble Supreme Court did not interfere with the concurrent findings of the two courts, but since a submission was made to release the accused on probation, the Hon'ble Supreme Court having regard to the circumstances ordered for releasing the accused on probation. Therefore it is clear that a situation like the one that has arisen in the present case did not arise before the Hon'ble Supreme Court.
9.4. Even in the case of Samaul Sk vs State of Jharkhand And Another [2021 SCC Online Sc 645], submission for releasing the accused on probation was made at the hearing of SLP. On 26.07.2021, at the time of declining the request, the Hon'ble Supreme Court expressed an opinion :: 48 ::
that it was not averse to considering reduction of sentence subject to the condition that the petitioner would give adequate compensation to respondent No.2 and her children apart from the maintenance being paid under Section 125 of Cr.P.C. Then the counsel for the appellant/accused submitted that the appellant was willing to pay compensation of Rs.3,00,000/-. In view of this submission, the Hon'ble Supreme Court reduced the sentence, but did not apply the provisions of Section 3 or 4 of PO Act. It may be stated that the Supreme Court exercised its discretionary jurisdiction to reduce the sentence.
9.5. The facts in Chhanni vs State of Uttar Pradesh, [(2006) 5 SCC 396] clearly show that after the High Court set-aside the conviction for the offence under Section 304(II) of IPC and convicted the accused for the offence under Section 323 of IPC instead, and sentenced him to undergo one year rigorous imprisonment, an :: 49 ::
application was filed before the High Court under Section 4 of the Probation of Offenders Act. The High Court noted that there was no provision for permitting the modification of an order in as much as that plea had not been urged at the time of hearing of the appeal and therefore dismissed the application. When this matter was taken to Supreme Court, it was observed that the High Court was justified in taking that view, but however directed the High Court to consider the application under the Probation of Offenders Act or Section 360 of Cr.P.C. Thus it is clear that the Hon'ble Supreme Court expressed an opinion that the rejection of the application filed under the PO Act after the pronouncement of judgment was not improper.
9.6. Bomma @ Bavarlal vs State of Karnataka [Criminal Appeal No. 807/2017 and connected matters) is an order passed by the Division Bench of this Court. The Division Bench :: 50 ::
entertained the application after pronouncement of the sentence to clarify the applicability of Section 428 of Cr.P.C. In this order there is no indication that even after pronouncement of the judgment, an application of the type on hand can be considered. There is a great lot of difference between issuing a clarification and entertaining the application for modification of the judgment.
Therefore the order of the Division Bench does not help the appellant.
9.7. Asit Kumar Kar vs State of West Bengal And Others [(2009) 2 SCC 703] is cited in the context of the argument that even before reducing the sentence of imprisonment to 3 years for the offence under Section 306 of IPC, the appellant should have been heard to meet the ends of justice. It is observed in this judgment that it is a basic principle of justice that no adverse order should be passed against a party without hearing him. While observing so, the :: 51 ::
Hon'ble Supreme Court referred to the judgment of the Constitution Bench in the case of A.R.ANTULAY vs R.S.NAYAK [(1988) 2 SCC 602]. This observation was made by the Hon'ble Supreme Court in the context of the situation that the licencees were not heard before their licences were ordered to be cancelled. The Hon'ble Supreme Court observed that the petition under Article 32 of the Constitution of India could be treated as a recall petition. It is quite clear that this judgment is cited in support of I.A.No.3/2022. With great respect it may be stated that this judgment does not help the appellant because his counsel was heard at great length touching the merits of the appeal and at that time he did not argue that in case this court would come to conclusion that the conviction in relation to offence under Section 306 of IPC could be retained, the appellant could be released under the provisions of Probation of Offenders Act. In :: 52 ::
fact Sri Hashmath Pasha admitted while arguing on these two applications that it was a lapse on his part, and then submitted that his lapse should not come in the way of considering the application even after pronouncement of judgment. 9.8. In Vishnu Agarwal vs State of Uttar Pradesh And Another [(2011) 14 SCC 813], it has been observed by the Hon'ble Supreme Court that Section 362 of Cr.P.C. cannot be considered in a rigid and over technical manner to defeat the ends of justice and that the court should not give its decision based only on the letter of the law.
The facts show that the High Court decided a Criminal Revision Petition on 02.09.2003, in the absence of the petitioner and thereafter the revision petitioner moved an application for recalling the said order giving the reason that the counsel did not come to know of the listing of the case. The High Court recalled the order and directed for listing of the case for fresh hearing.
:: 53 ::
The opposite party approached the Supreme Court challenging the said order, and in that context, the Hon'ble Supreme Court made the above observation. So it is quite clear that the application was made for recalling the order passed on revision petition which was decided in the absence of the counsel for the petitioner. Same is not the situation here. I do not think that this judgment helps the appellant.
9.9. All Bengal Excise Licensee's Association vs Raghabendra Singh And Others [(2007) 11 SCC 374], broadly discusses the scope of inherent jurisdiction of the High Court under Section 151 CPC and 482 of Cr.P.C. It appears that this judgment is cited to invoke the jurisdiction under Section 482 of Cr.P.C. for granting the application I.A.No.3/2022.
10. After referring to all the judgments that Sri Hashmath Pasha has cited, it may be stated :: 54 ::
that none of them is applicable to the present situation. The reason is that he elaborately argued on the merits of the appeal and every point of his argument has been referred to in the judgment. It is true that after hearing the appeal, I made an observation that at least there was a case for sustaining the judgment of conviction in regard to offence under Section 498A of IPC and at that time, Sri Hashmath Pasha made a submission for reducing the sentence in regard to that offence by setting off the period of imprisonment the appellant had already undergone. The appeal was reserved for pronouncement of judgment. After re-assessing the entire evidence, it was noticed that even the conviction for Section 306 of IPC could be retained, but however, the sentence was reduced. At the time of arguing on merits of the appeal, Sri Hashmath Pasha did not argue that the benefit under the provisions of Probation of Offenders Act could be extended to the appellant.
:: 55 ::
It was open for him to address arguments even on this line anticipating every situation that the court might take after reassessment of evidence. It cannot be said that the benefit under the Probation of Offenders Act cannot be extended in the appeal. Section 11 of P.O Act provides for it. But his argument that he should have been heard even before reducing the sentence for the purpose of examining the applicability of Sections 3 or 4 of PO Act, cannot be accepted for the following reasons:
11. The appeal before me was against judgment of conviction. The judgment of trial court shows that the defence counsel did not argue for giving the benefit under the provisions of PO Act. Even if that point had been raised, the trial court would not have considered it for, the appellant was convicted for the offence under section 304B IPC.
:: 56 ::
12. In an appeal against conviction judgment, I do not think that it is necessary to hear the counsel for the accused on the sentence, the reason being that sentence has already been pronounced by the trial court. In the appeal, the accused would argue for his acquittal. The appellate court may acquit the accused or reduce the sentence, but it cannot enhance the sentence.
Of course, if a circumstance is made out for applying the provision of section 360 of Cr.P.C or section 3 or 4 of PO Act, it can be examined. The counsel for the accused/appellant must argue that there is a case for extending benefit under the provisions of PO Act or section 360 Cr.P.C. While there is no bar for the court suo motu examining to apply section 360 Cr.P.C. or the provisions of PO Act, there is equal responsibility on the accused to draw the attention of the court by putting forth the circumstances that entitle him to claim the benefit. It is not incorrect to state that :: 57 ::
the accused should plead for release on probation because he knows his predicaments better than any other. Section 386 Cr.P.C clearly deals with powers of the appellate court. Neither in an appeal from the order of acquittal nor in an appeal from conviction, the appellate court is required to hear the accused on the sentence, it is only in an appeal for enhancement of sentence, accused should be given an opportunity of showing cause in case sentence is to be enhanced. Though it may be stated that in case of an appeal against acquittal judgment, the appellate court may provide an opportunity to the accused to make submission on the sentence to be imposed as the ends of justice would require his hearing, it may be stated that it is not mandatory to provide such an opportunity. In this context, the judgment of the Supreme Court in the case of Bachan Singh and Others vs State of Punjab [AIR 1980 SC :: 58 ::
267] [Manu/SC/0077/1979] may be relevantly referred. It is held that, "9. But, even otherwise, there is no merit in the grievance of the accused that they were not given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence.
The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction , and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence. That in fact was the subject matter of their appeal."
13. If the above analysis is applied, the appellant in the case on hand had an ample opportunity to plead for benefit under the PO Act at the time of argument on merits of the appeal. That opportunity being not availed of, I do not think that at a subsequent stage he can come up with an application, I.A.No.2/2022 for releasing him on probation.
:: 59 ::
14. The argument of Sri Hashmath Pasha was that though the sentence has been reduced, still the case of the appellant for releasing him on probation by retaining the sentence can be considered. I do not think that this argument is worthy of acceptance. If there is a case for giving benefit under section 3 or 4 of the Probation of Offenders Act, the sentence should not be pronounced or there should not be any order with regard to sentence. These two sections make it very clear that the court has to extend the benefit of releasing the accused on probation instead of punishing the accused. That means sentence should not be pronounced and if there is a case for releasing the accused on probation, the accused must be directed to execute bond before releasing him. Only if there is any breach of the conditions imposed on the accused, the court should proceed to sentence him. Interpreting the word 'instead', the High Court of Allahabad in the case of :: 60 ::
Chhabinath Dube and Others vs State of U.P.[MANU/UP/0956/1989] has held as below :
"13. If we were to accept the contention that Section 4 is applicable only to those offences which are punishable with imprisonment only, then the Section will become inapplicable to a large number of offences set out in Indian Penal Code which are punishable with imprisonment as well as fine either in this alternative or in addition to it. It was suggested by Learned Counsel for the State that an accused may be released on probation instead of being sentenced to imprisonment and the sentence of fine may be imposed upon him. But the Section does not permit such a procedure. It provides that a court may release an offender on probation, it will not pass any sentence against him. The sentence of imprisonment and fine is really one sentence for the offence and the court may either sentence the offender or release him on probation. If it decides to release him on probation, it :: 61 ::
can not, at that stage, sentence him at all, but if it decides not to release him on probation, it may, if it is so provided either sentence him to imprisonment or to fine, or to both.
9. So the position boils down that in both the cases i.e., where the offence is punishable with fine, and imprisonment or the offence is punishable with fine or imprisonment, the court will not pass any sentence against the offender while releasing him on probation of good conduct."
(emphasis supplied)
15. Even otherwise the language of the section is so plain to understand that once the court determines to proceed under the PO Act, it cannot pass any order with regard to sentence. Therefore the argument that sentence could be retained for examining the applicability of PO Act cannot be upheld. The sentence and the benefit under PO Act cannot go together.
:: 62 ::
16. There are two decisions which were brought to the notice of Sri Hashmath Pasha. They are on the point that if the applications made on behalf of the appellant are entertained, it would amount to reviewing the order on sentence. In the case of State of Madhya Pradesh vs Man Singh [AIR 2019 SC 5622], a question similar to the case on hand arose for consideration. The facts were that one Man Singh was prosecuted in relation to offences under sections 468, 471 and 419 of IPC. The trial court held him guilty and imposed punishment. Man Singh preferred an appeal to the Sessions Court which dismissed the appeal. Then he preferred a revision petition to the High Court which affirmed the conviction, but reduced the sentence of imprisonment to the period already undergone and enhanced the fine to Rs.10,000/-. Man Singh deposited the fine amount and made an application under section 482 Cr.P.C. requesting for giving benefit of Probation of :: 63 ::
Offenders Act. The High Court allowed the application and this order was challenged before the Supreme Court. In that context, the Hon'ble Supreme Court held as below:
"5. It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of CrPC. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits. After disposing of a case on merits, the Court becomes functus officio and Section 362 CrPC expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers.
:: 64 ::
6. We have, therefore, no doubt in our mind that the High Court had no power to entertain the petition under Section 482 CrPC and alter the sentence imposed by it. We may also add that the manner in which the probation has been granted is not at all legal. The trial court had given reasons for not giving benefit of probation. When the High Court was deciding the revision petition against the order of conviction, it could have, after calling for a report of the Probation Officer in terms of Section 4 of the Act, granted probation. Even in such a case it had to give reasons why it disagreed with the trial court and the first appellate court on the issue of sentence. The High Court, in fact, reduced the sentence to the period already undergone meaning thereby that the conviction was upheld and sentence was imposed. After sentence had been imposed and served and fine paid, there was no question of granting probation."
:: 65 ::
17. A learned single Judge of this court in the case of Gangadhara Shetty vs State of Karnataka [ILR 1989 KAR 2199] had an opportunity to meet with an identical situation while deciding a Criminal Petition filed under section 482 Cr.P.C. It has been observed, "28. It is my considered view that passing of an order extending the benefit of S. 4 of the Act to the petitioner in this petition would amount to alteration or review of the judgment and final order made by this Court in the Criminal Revision Petition.
Any alteration or modification in the sentence at a point of time, subsequently to the date of judgment disposing of a case, amounts to review of the judgment. Under the scheme of the Act, the benefit of release on probation can be given instead of sentencing the person held guilty at once to any punishment. If the petitioner is now ordered to be released on probation on good conduct instead of complying with :: 66 ::
the sentence of fine awarded against him by the judgment and final order passed by this Court in the Criminal Revision Petition, it is my considered view that it would amount to alteration or review of the judgment and final order made by this Court in so far as the sentence is concerned.
29. In the case of Ramachandra Rao referred to supra, the substitution of a sentence of fine for the substantive sentence of imprisonment at some time subsequent to the date of judgment was regarded as not permissible in view of S. 362 of the Code. It is by now well settled that any alteration of or modification in the sentence alone without touching the merits or the Section under which conviction is recorded, amounts to a review of the judgment in the eye of law."
18. Though Sri Hashmath Pasha tried to distinguish the above two decisions in his own way, I do not think that any distinguishment is :: 67 ::
possible. These two judgments are straight on the point. Therefore if the applications are allowed it amounts to reviewing the order on sentence. Section 362 Cr.P.C is a clear bar. Inherent power under section 482 Cr.P.C in a situation like this cannot be exercised. Even if the application, I.A.No.3/2022 is granted, the effect of it is granting review. For these reasons, the applications are not maintainable.
19. From the above discussion, the applications are to be dismissed and ordered accordingly. The best efforts made by Sri Hashmath Pasha for securing justice to the appellant are placed on record.
20. Sri Hashmath Pasha who is present, now submits that fifteen days granted by this court to the appellant to surrender before the court expires today. He prays for extending the time by one week so that the appellant could make some :: 68 ::
arrangements for the sake of his family. This request is considered. Time is extended by another seven days from today. The appellant shall surrender before the trial court on or before expiry of seven days from today.
Sd/-
JUDGE K M V/ CK L Lis t N o. : 1 S l No . :6