IMPORTANT POINTS
(1) Fine is not an alternative to imprisonment.
(2) Benefit of probation – If Section 360, Cr.P.C. were not applicable in a particular case, there is no reason why Section 4 of Probation Act would not be attracted.

JUDGMENT :

DIPANKAR DATTA, J.

1. This appeal, by special leave, assails the judgment and order dated 5th November, 2019¹ [impugned order] passed by a learned Judge of the High Court of Judicature at Madras, partly allowing the appellants' criminal appeal² [Crl. Appeal No. 345/2012] under Section 374(2), Code of Criminal Procedure.³ [Cr.P.C.]

2. The two appellants, mother-in-law and husband, respectively, of the deceased were jointly tried⁴ [S.C. No. 37 of 2009] for commission of offences punishable under Section 304-B and Section 498A, Indian Penal Code.⁵ [IPC] The Sessions Judge (Mahila Court), Coimbatore⁶ [Sessions Judge] vide its judgment and order dated 25th May, 2012, acquitted the appellants of the charge under Section 304-B, IPC but convicted them under Section 498-A, thereof. While the 1st appellant was sentenced to a year’s rigorous imprisonment, the 2nd appellant was sentenced to two years’ rigorous imprisonment. Both the appellants were sentenced to fine too.

3. The High Court, vide the impugned order, maintained the conviction of the appellants under Section 498A, IPC, together with the sentence of a year’s rigorous imprisonment imposed on the 1st appellant; however, the sentence of two years rigorous imprisonment imposed on the 2nd appellant was reduced to a year’s rigorous imprisonment. The sentence of fine was not touched.

4. It has been ascertained in course of hearing that the appellants have not been in prison even for a single day.

5. We have heard Mr. N. Rajaraman, learned counsel for the appellants and Mr. V. Krishnamurthy, learned senior counsel and Additional Advocate General for the respondent-State Tamil Nadu at some length.

6. The date of offence relates back to 11th January, 2008. It was the birthday of the girl child of the 2nd appellant and the deceased. A quarrel erupted over how to celebrate the child’s birthday with the deceased and the 1st appellant having different ideas. The 1st appellant had her way with the support of the 2nd appellant. This infuriated the deceased, who was only 19 years old, to set herself ablaze. Ultimately, she passed away on 16th January, 2008 because of the burn injuries sustained by her. In the dying declaration of the deceased (dated 11th January, 2008), we find that she truthfully declared that the appellants never demanded dowry. This paved the way for the appellants’ acquittal for the graver offence of dowry death. However, we have found allegations in the dying declaration of the deceased that the appellants occasionally beat her as well as hurled abuses towards her by calling her a mental patient. The Sessions Judge and the High Court having returned finding of facts on appreciation of the evidence on record that the appellants are guilty of the offence under Section 498A, IPC, we do not propose to interfere with the conviction.

7. However, 17 years have passed since the date of the incident. Prior to the incident of crime, the appellants were not involved in any crime. During these 17 years too, they did not indulge in any further crime. On the other hand, they have looked after the child of the 2nd appellant and the deceased well and she is now an adult of 19 years, pursuing her education.

8. Based on such facts and circumstances and urging us to consider the negative impact that could befall the now adult girl child of the 2nd appellant and the deceased if her grandmother and father were to be imprisoned, Mr. Rajaraman implored this Court to set aside the sentence of imprisonment by enhancing the fine.

9. Unfortunately, that is not a permissible course of action in view of Section 498A, IPC. It ordains that a woman’s husband or the husband’s relative, if found guilty of subjecting the woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Thus, fine is not an alternative to imprisonment. What, therefore, survives for consideration is the question of grant of probation, either under the Cr.P.C.