Jharkhand High Court
Anil Kumar Sah Son Of Late Gulabi ... vs The State Of Jharkhand on 30 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 300 of 2012
Anil Kumar Sah son of Late Gulabi Sah ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Punam Devi W/o Sri Anil Kumar Sah
& D/o Om Prakash Soni ... ...Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Manoj Kumar Sah, Adv.
For the State : Mr. Shailesh Kr. Sinha, A.P.P.
For O.P. No.2 : None
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Through Video Conferencing
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JUDGMENT
7/C.A.V. on 07.04.2021 Pronounced on 30.04.2021
Heard Mr. Manoj Kumar Sah, the learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. Shailesh Kumar Sinha, the learned A.P.P.
appearing on behalf of the Opposite Party-State.
3. The present criminal revision petition is directed against
the Judgment dated 03.02.2012 passed by the learned District
and Sessions Judge-II, Sahibganj in Criminal Appeal No. 15 of
2011 whereby and whereunder the Judgment of conviction and
the order of sentence of the petitioner under Section 498A of the
Indian Penal Code passed by the learned trial court was
affirmed and the criminal appeal was dismissed.
4. The criminal appeal was preferred against the Judgment
of conviction and the order of sentence dated 21.02.2011
(corrected vide order dated 29.03.2011) passed by the learned
Judicial Magistrate, Sahibganj in P.C.R. Case No. 448 of 2006 /
T.R. No. 81 of 2011 whereby and whereunder the petitioner was
convicted under Sections 323 and 498A of the Indian Penal
Code and was sentenced to undergo Rigorous Imprisonment
for 03 years with fine of Rs.1,000/- for the offence under Section
498A of the Indian Penal Code and in default in payment of
fine, to undergo additional imprisonment for 03 months and he
was further sentenced to undergo Rigorous Imprisonment for
06 months for the offence under Section 323 of the Indian Penal
Code and both the sentences were directed to run concurrently.
However, the rest two accused persons namely, Sulochana Devi
and Rekha Devi were acquitted from the charges under
Sections 498A and 323 of the Indian Penal Code for want of
sufficient evidence.
Arguments on behalf of the petitioner
5. Learned counsel for the petitioner while assailing the
impugned judgments submitted that admittedly, the marriage
between the petitioner and Opposite Party No.2 was
solemnized on 21.07.1996 and as per the complaint itself,
appropriate gifts were also given during the course of marriage.
He submitted that the complaint was filed after more than 10
years on 15.12.2006 alleging that after two years of marriage,
the petitioner made a demand of Rs.2 Lakhs and assaulted and
tortured the complainant and ultimately, on 10.12.2006, the
petitioner left the complainant at her father's house. He further
submitted that as per the evidence of the complainant herself,
the demand of Rs.2 Lakhs was made for her treatment as no
child was born out of their wedlock. He also submitted that the
learned appellate court has not recorded any finding that the
demand of money was in relation to the marriage or on account
of dowry.
6. The learned counsel further submitted that without
prejudice to the aforesaid submissions, the facts remains that
the petitioner was all along on bail during trial and he
remained in jail custody from 27.04.2012 to 26.05.2012 i.e. for
one month at revisional stage of the case. He further submitted
that the Complaint was filed as back as on 15.12.2006 and since
then, more than 14 years have elapsed and the present age of
the petitioner is 52 years and the present case is his first offence
and therefore, considering the aforesaid aspects of the matter,
including the facts that the case was filed after 10 years of
marriage and the main problem appears to be the fact that no
child was born out of their wedlock, some sympathetic view
may be taken. He also submitted that the petitioner is ready to
make some payment to the Opposite Party no.2 by way of
victim compensation and accordingly, the sentence of the
petitioner may be modified to the period already undergone in
custody by enhancing the fine amount.
Arguments on behalf of the Opposite Party-State
7. The learned A.P.P. appearing on behalf of the Opposite
Party-State, on the other hand, opposing the prayer submitted
that under the provisions of Section 498A of the Indian Penal
Code, the demand of property need not be in relation to
marriage or by way of dowry. He submitted that any demand
of property coupled with torture comes within the definition of
cruelty as defined under Section 498A of the Indian Penal Code
and accordingly, even if the amount of Rs.2 Lakhs was
demanded for any purpose whatsoever, the same was coupled
with assault and torture to the Complainant and accordingly,
there is no illegality or perversity in the impugned judgments
passed by the learned courts below.
8. The learned A.P.P. further submitted that if this Court is
inclined to modify the sentence of the petitioner, then the fine
amount may not be less than Rs.1 Lakh which may be directed
to be remitted to the Complainant by the learned court below.
Findings of this Court
9. After hearing the learned counsel for the parties and
going through the impugned judgments as well as the lower
court records of the case, this Court finds that the prosecution
case is based on the Complaint presented by the Complainant
namely, Punam Devi on 15.12.2006 alleging inter-alia that the
marriage of the Complainant with the petitioner was
solemnized on 21.07.1996 and Rs.50,000/- in cash, household
articles, gold ornaments, necklace and other necessary articles
were given to the petitioner as gifts and after the marriage, she
went to her matrimonial house where she was treated well and
there was cordial relationship for two years, but thereafter, the
petitioner alongwith other accused persons started harassing
her for more dowry amount and he mercilessly assaulted the
Complainant to bring Rs.2,00,000/- from her father for
investing in business. It was further alleged that the other
accused persons attempted to burn her by pouring kerosene oil,
but she was rescued by the villagers and her parents were
informed and thereafter, a panchayati was held for settlement
of the disputes. On 10.12.2006, the petitioner assaulted the
complainant and forcibly left her at her father's house and told
her family members that if Rs. 2,00,000/- is not given to him, he
would marry with another girl.
10. After conclusion of enquiry, the learned Chief Judicial
Magistrate, Sahibganj, vide order dated 25.09.2007 / 26.09.2007,
found a prima facie case under Sections 323 and 498A of the
Indian Penal Code against the petitioner and Rekha Devi and
Sulochana Devi.
11. On 09.07.2009, the charges under Sections 498A/34 and
323/34 of the Indian Penal Code were framed against the
petitioner and Rekha Devi and Sulochana Devi which were
read over and explained to them in Hindi to which they
pleaded not guilty and claimed to be tried.
12. In course of trial, the Complainant examined altogether
03 witnesses in support of her case. C.W.-1 is Ras Bihari Mishra,
C.W.-2 is Om Prakash Soni who is the father of the
Complainant and C.W.-3 is Punam Devi who is the
Complainant herself. No document has been exhibited as
documentary evidence on behalf of the Complainant.
13. On 23.04.2010, the statements of the accused persons
including the petitioner were recorded under Section 313 of
Cr.P.C. wherein the petitioner simply denied the incriminating
evidences put to him and claimed to be innocent. Thereafter, 02
witnesses were examined on behalf of the petitioner and other
accused persons in their defence. D.W.-1 is Shravan Bhandari
and D.W.-2 is Lalan Kumar Sah. No document has been
exhibited as documentary evidence on behalf of the petitioner
in his defence.
14. This Court finds that the learned trial court considered
the arguments advanced on behalf of the parties and recorded
its findings after discussing the evidences on record. The
learned trial court recorded its finding that D.W.-1 accepted the
marital relationship between the parties and that they are
staying separately. The learned trial court discussed the
evidence of D.W.-2, but has not recorded any finding with
regard to the petitioner. After discussing the evidence of C.W.-
1, the learned trial court recorded that the evidence of C.W.-1
supports the version of the Complainant and it is clear that the
Complainant was driven out from her matrimonial house on
account of dowry and that the Complainant was tortured by
the petitioner. After discussing the evidence of C.W.-2 who is
the father of the Complainant, the learned trial court recorded
that from the evidence of C.W.-2, it transpires that the
Complainant wanted to go to her matrimonial house, but she
was not taken to her matrimonial house and his evidence
supports the allegations of dowry demand with torture and
assault committed to the Complainant. After discussing the
evidence of C.W.-3 who is the Complainant herself, the learned
trial court recorded its findings that there is no medical
certificate on record with regard to assault of the Complainant
and from the evidence of C.W.-3, it is proved that the petitioner
not only assaulted the Complainant, but also tortured her for
dowry. The learned trial court summarized its findings in Para-
9 and recorded that so far as the petitioner is concerned, the
Complainant and her witnesses have unanimously supported
the allegations of assaulting and driving out the Complainant
after torturing her for dowry.
15. The learned trial court acquitted Sulochana Devi and
Rekha Devi from the charges under Sections 498A and 323 of
the Indian Penal Code for want of sufficient evidence, but
convicted and sentenced the petitioner for the charges under
Sections 323 and 498A of the Indian Penal Code.
16. This Court further finds that the learned appellate court
also considered the oral evidences adduced on behalf of the
Complainant and the defence and also the arguments advanced
on behalf of both the parties and recorded its findings in Para-
10 which reads as under:
"10. From the evidence of the prosecution and defence, it is
clear that the appellant (petitioner herein) is not providing food
to the Complainant, there is no issue of the Complainant. She is
issueless, which is also one of the reasons of her neglect by her
husband. From weighing the entire evidence, I came to the
conclusion that the prosecution has been able to bring home
charge levelled against the accused and the learned lower court
has rightly come to the conclusion of harassment and torture
and assault and has rightly passed order of conviction and
sentence. I find no reason to interfere in the findings. In the
result, the appeal is dismissed."
17. This Court further finds that the learned trial court has
recorded that the Complainant and her witnesses have
unanimously supported the allegations of assaulting and
driving out the Complainant after torturing her for dowry and
has found sufficient evidence for conviction of the petitioner
under Sections 323 and 498A of the Indian Penal Code.
18. This Court further finds that the learned appellate court
has recorded that the Complainant was issueless and due to
which she was assaulted, tortured and harassed by the
petitioner. The learned appellate court refused to interfere with
the trial court's judgement.
19. After scrutiny of the materials on record, this Court finds
that the marriage of the Complainant with the petitioner was
solemnized on 21.07.1996 and she lived peacefully in her
matrimonial house for two years, but she remained issueless
and she was assaulted and tortured by the petitioner for
demand of Rs.2,00,000/- and on 09.12.2006, the petitioner took
the Complainant to her father's house and left her there and
thereafter, the Complainant filed the Complaint on 10.12.2006.
The evidence of the prosecution witnesses is consistent on the
point. This Court finds that the allegation of attempting to burn
the Complainant by pouring kerosene oil upon her is against
Sulochana Devi and Rekha Devi who have already been
acquitted by the learned trial court. Admittedly, the
Complainant has not filed or exhibited any injury report.
20. The Hon'ble Apex Court has explained the power of
revisional court in the case of Jagannath Choudhary and others
reported in (2002) 5 SCC 659 at Para-9 as under:-
"Incidentally the object of the revisional jurisdiction as
envisaged u/s 401 was to confer upon superior criminal courts
a kind of paternal or supervisory jurisdiction, in order to
correct miscarriage of justice arising from misconception of law,
irregularity of procedure, neglect of proper precautions of
apparent harshness of treatment which has resulted on the one
hand in some injury to the due maintenance of law and order,
or on the other hand in some underserved hardship to
individuals. (See in this context the decision of this Court in
Janata Dal Vs. H.S. Chowdhary). The main question which the
High Court has to consider in an application in revision is
whether substantial justice has been done. If however, the same
has been an appeal, the application would be entitled to demand
an adjudication upon all questions of fact or law which he
wishes to raise, but in revision the only question is whether the
court should interfere in the interests of justice. Where the
court concerned does not appear to have committed any
illegality or material irregularity or impropriety in passing the
impugned judgment and order, the revision cannot succeed. If
the impugned order apparently is presentable, without any such
infirmity which may render it completely perverse or
unacceptable and when there is no failure of justice, interference
cannot be had in exercise of revisional jurisdiction."
21. The revisional power is further explained in the case of
Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at
Para-13 as follows:
"It is well settled that revisional interference may be
justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based
on evidence.
(iv) material evidence of the parties is not considered and
(v) judicial discretion is exercised arbitrarily or
perversely."
22. In the case Duli Chand v. Delhi Administration, (1975) 4
SCC 649, the Hon'ble Supreme Court while considering the
scope of revisional power held in paragraph-5 as follows:
"5. The High Court in revision was exercising supervisory
jurisdiction of a restricted nature and, therefore, it would have
been justified in refusing to re-appreciate the evidence for the
purposes of determining whether the concurrent finding of fact
reached by the learned Magistrate and the learned Additional
Sessions Judge was correct. But even so, the High Court
reviewed the evidence presumably for the purpose of satisfying
itself that there was evidence in support of the finding of fact
reached by the two subordinate courts and that the finding of
fact was not unreasonable or perverse."
23. Considering the entire facts and circumstances of the
case, this Court does not find any reason for re-appreciation of
the evidences for any interference under revisional jurisdiction.
This Court does not find any illegality or perversity in the
conviction of the petitioner under Sections 323 and 498A of the
Indian Penal Code.
24. This Court further finds that the Complaint case was filed
on 10.12.2006 after 10 years of the marriage and since then,
more than 14 years have already elapsed and the petitioner has
faced the rigors of the criminal litigation for a long period and
the present case is his first offence as recorded by the learned
trial court and at present, he is aged about 52 years.
25. Considering the aforesaid aspects of the case, this Court is
of the considered view that the ends of justice would be served,
if the sentence of the petitioner is modified and reduced to
some extent and the fine amount is enhanced. Accordingly, the
sentence of the petitioner for offence under Section 498A of the
Indian Penal Code is modified and reduced to Rigorous
Imprisonment for six (06) months and the fine amount of
Rs.1,000/- awarded by the learned trial court is enhanced to Rs.
1,00,000/- (One Lac) to be deposited before the learned trial
court within a period of two months from the date of
communication of this order to the learned court below. This
Court is not inclined to interfere with the sentence passed
under Section 323 of the Indian Penal Code. Both the sentences
shall run concurrently and the period of custody already
undergone by the petitioner shall be set off.
26. The learned trial court is directed to remit the fine
amount so deposited by the petitioner, to the Complainant
upon due identification. If the fine amount is not deposited
within the time frame as indicated above, the petitioner would
serve the sentence imposed by the learned trial court.
27. Accordingly, the conviction of the petitioner for offences
under Sections 323 and 498A of the Indian Penal Code passed
by the learned trial court and affirmed by the learned appellate
court is upheld and the sentence is modified as indicated above.
Accordingly, this criminal revision petition is hereby disposed
of.
28. Interim order, if any, stands vacated.
29. The bail bond furnished by the petitioner is hereby
cancelled.
30. Pending interlocutory application, if any, is dismissed as
not pressed.
31. Let the Lower Court Records be immediately sent back to
the court concerned.
32. Let a copy of this order be communicated to the learned
court below through "FAX/Email".
(Anubha Rawat Choudhary, J.)
Saurav/
