Jharkhand High Court
Binod Mandal vs The State Of Jharkhand on 21 June, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1048 of 2013
Binod Mandal, son of late Sitaram Mandal, resident of Hareram
Tola, Udhwa, P.O. & P.S. - Radha Nagar, District - Sahebganj
...... Petitioner
-Versus-
1.The State of Jharkhand
2. Kalpana Devi @ Kampoo, daughter of Late Satish Mandal,
resident of Amanat Diyara, P.O. & P.S. - Rajmahal, District -
Sahebganj ... ...Opposite Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. A.K. Sahani, Advocate
Mr. Pankaj Verma, Advocate
For the Opp. Party No.2: Mr. J.P. Pandey, Advocate
For Opp. Party-State : Mr. Ashok Kumar, A.P.P
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Through Video Conferencing
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09/21.06.2021
Heard Mr. A.K. Sahani, learned counsel appearing on
behalf of the petitioner along with Mr. Pankaj Verma,
Advocate.
2. Heard Mr. J.P. Pandey, learned counsel appearing on
behalf of the opposite party no.2.
3. Heard Ashok Kumar, learned A.P.P. appearing on behalf
of the Opposite Party-State.
4. The present revision application has been filed
challenging the order dated 04.06.2013 passed by learned
Principal Sessions Judge, Sahebganj in Criminal Appeal No.20
of 2012 affirming the judgment of conviction and order of
sentence dated 16.02.2012 passed by the learned Civil Judge
(Junior Division)-cum-Judicial Magistrate 1st class, Rajmahal in
P.C.R. Case No.381 of 1999 whereby the petitioner has been
convicted for offence under Section 498A of Indian Penal Code
and has been sentenced to undergo simple imprisonment for
two years with a fine of Rs.2,000/- and in default of payment of
fine, he has been sentenced for further simple imprisonment for
a period of two months.
Arguments of the Petitioner
5. Learned counsel appearing on behalf of the petitioner
while challenging the impugned judgments has submitted that
the prosecution has failed to prove the case beyond shadow of
all reasonable doubts and there are no independent witnesses
in the present case. He submits that the learned courts below
have failed to consider that the case was filed by the
complainant in the year 1999 and the marriage was solemnized
15 years ago as back as in the year 1983 and the story of
demand of dowry and torture has been concocted by the
complainant.
6. Learned counsel for the petitioner submits that the
impugned judgments of conviction of the petitioner under
Section 498A of Indian Penal Code are perverse and are fit to be
set aside in revisional jurisdiction.
7. Learned counsel further submits that although the charge
was framed against the petitioner and other accused persons
for alleged offence under Sections 494/323/384/504/498A/34
of Indian Penal Code, but it was only the petitioner, being the
husband of the complainant, who has been convicted only
under Section 498A of Indian Penal Code and the other accused
namely Purni Devi, sister of the petitioner, was acquitted by
holding that there was no direct allegation against her from the
side of the complainant that she subjected the complainant to
physical and mental torture or made any demand of dowry.
8. The learned counsel for the petitioner, while confining his
argument on the point of sentence, has submitted that the
marriage had taken place as back as in the year 1983 and the
case was filed in the year 1999 and altogether, four children
were born out of wedlock. He submits that on the date of
conviction, the petitioner was aged 42 years on 16.02.2012 and
accordingly, he is more than 50 years of age as on today. The
petitioner has faced the rigors of criminal case for a very long
time i.e. since 1999 and has remained in custody during the
pendency of the present case when he surrendered on
25.10.2013 and was granted bail by this Court vide order dated
06.12.2013 and as per his instructions, he was released on
11.12.2013. The learned counsel submits that the petitioner has
already deposited the fine amount imposed by the learned
court below.
9. The learned counsel for the petitioner also submits that
the petitioner does not have any other criminal antecedent and
considering the totality of facts and circumstances of the
present case, the sentence be modified and be confined to the
period already undergone in custody. The learned counsel
further submits that he is ready to pay any amount that may be
fixed by this Court by way of fine or victim compensation, as
found fit.
Arguments of the State
10. Learned counsel appearing on behalf of the opposite
party State, on the other hand, while opposing the prayer of the
petitioner has submitted that there are concurrent finding of
facts recorded by the learned courts below and merely because
the marriage was solemnized in the year 1983 and the criminal
case was filed in the year 1999, the same by itself is not a
ground for interference in the impugned judgments of
conviction particularly in view of the fact that the last incident
of torture in connection with demand of dowry has been stated
to be in the first week of the month of July, 1998 when the
complainant was pregnant by 6 months which ultimately
forced the complainant to leave her matrimonial house. The
demand of dowry and consequent torture on account of non-
fulfillment of demand is a continuing offence which lastly
happened in the month of July, 1998 and the complaint was
filed in the year 1999. Learned counsel submits that considering
the nature of offence involved in the present case and the
limited scope of revisional jurisdiction, the impugned
judgments do not call for any interference by this Court.
11. The learned counsel further submits that so far as the
modification of sentence is concerned, it is up to the court, but
in case this Court is inclined to modify the sentence, the fine
amount may be enhanced. He submits that the fine amount
may be disbursed to the complainant of the case after due
identification.
Findings of this Court
12. It transpires from the record that initially there were
altogether 4 accused in the complaint case, the petitioner, his
sister Purni Devi, his father Sita Ram Mandal and his mother
Paro Devi, but the names of Sita Ram Mandal and Paro Devi
i.e., father-in-law and mother-in-law of the complainant, were
deleted from the list of the accused persons vide order dated
26.03.2009 on account of their death and accordingly only two
accused i.e., present petitioner and his sister Purni Devi faced
the trial and out of the two, petitioner being the husband of the
complainant has been convicted for offence under Section 498A
of Indian Penal Code whose conviction has been upheld by the
learned appellate court.
13. This Court finds that as per the complaint, marriage of
the complainant was solemnized with the petitioner in the year
1983 and after that she went to her matrimonial house and
lived there along with her husband and out of the wedlock four
children i.e., two sons and two daughters were born. It has been
alleged that the accused persons i.e., husband and other in-laws
started demanding dowry of Rs.10,000/- and due to non-
fulfillment of such demand, complainant was being subjected
to torture and cruelty, physical and mental, and pressure was
put on the complainant to fulfill the demand. A Panchyati was
also convened where the petitioner accepted his guilt and after
that, the complainant was assaulted by the accused persons and
was ultimately ousted from her matrimonial house. It is further
alleged that the aforesaid illegal demand was repeated again
and again and in the month of July, 1998 when the complainant
was pregnant and carrying pregnancy of six months, the
accused persons assaulted her and expelled her along with 3
children with instructions to come back along with Rs.10,000/-
and threatening that otherwise they would not allow the
complainant to live in her matrimonial house. The accused
persons also took the signature of the complainant on paper
forcibly.
It has also been alleged that after the complainant was thrown
out of her matrimonial house, she gave birth to the 4th child, but
the petitioner never gave any heed nor managed for
maintenance of the new born child or the complainant and
other children. It is also alleged that the father of the
complainant was not alive and complainant was living in very
hardship. It has also been alleged that the petitioner had also
performed second marriage with another girl and used to live
along with his second wife and after that the criminal case was
filed.
14. The solemn affirmation of complainant was recorded on
02.09.1999 where she had fully supported the prosecution case.
She has also submitted that the demand of dowry and
consequent torture was also reported to her brother Sujit
Mandal. Thereafter, his brother Sujit Mandal along with Doman
Mandal and Hiren Mandal reached at her matrimonial house
and tried to pacify the matter, but the accused were adamant
and repeated their demand of Rs.10,000/- and it was also
threatened that the complainant would not be allowed to stay
in her matrimonial house until the demand is fulfilled. It has
also been alleged that thereafter the complainant was expelled
from her matrimonial house and thereafter she was living in
the house of her mother along with 4 children, who were not
cared for by the petitioner on the one hand, and he performed
second marriage with one Sunita Devi, daughter of Khokha
Mandal in the year 1999. The complainant clearly deposed that
she was subjected to torture, cruelty and beaten up by her
husband and in-laws. She also deposed that a Panchayati was
also convened, but no positive result came.
15. The brother of the complainant deposed as P.W. 1, who
supported the prosecution case fully. P.W. 2 Hiren Mandal also
supported the prosecution case. P.W. 3 Doman Mandal
supported the prosecution case, but as per para 10 of the trial
court judgment, he was not cross-examined after charge so his
examination in chief could not be read as a part of evidence.
However, the lower learned appellate court while considering
the evidences has overlooked the fact that P.W.3 was not
subjected to cross examination after charge. The learned trial
court while considering the cross-examination of the witnesses,
has found that there was nothing to disbelieve the version of
the prosecution and the defence failed to rebut the evidence of
the prosecution. However, the learned trial court recorded that
so far as offence under Section 494 of Indian Penal Code is
concerned, the factum of re-marriage was not proved by the
prosecution and accordingly held that the prosecution has
failed to prove the offence under Section 494 of Indian Penal
Code beyond shadow of all reasonable doubt and acquitted the
petitioner from charge under Section 494 of Indian Penal Code.
So far as the offence under Section 384 is concerned, the learned
trial court recorded that there was no ingredient of extortion
and accordingly held that the prosecution failed to prove the
offence under Section 384 of Indian Penal Code and acquitted
the accused persons from the charges under Section 384 of
Indian Penal Code. So far as the offence under Section 323 and
504 of Indian Penal Code are concerned, the learned trial court
did not record any separate finding by holding that the
ingredients are already with Section 498A of Indian Penal Code
and was of the view that there was no need to discuss
separately on the point of these charges.
16. The learned trial court considered the evidences against
Purni Devi (sister of the petitioner) and found that there was no
direct allegation against her that she demanded any dowry
from the complainant and that she subjected the complainant to
any physical or mental torture and accordingly acquitted Purni
Devi from the charges leveled against her.
17. So far as petitioner husband is concerned, the learned trial
court recorded that the prosecution has succeeded to bring
home the charge against the petitioner for offence under
Section 498A of Indian Penal Code for physical and mental
torture, for demand of dowry and there was nothing to
disbelieve the version of the complainant on this point and
accordingly convicted the petitioner under Section 498A of
Indian Penal Code and sentenced him for simple imprisonment
of 2 years and fine of Rs.2,000/- and in default of payment for
fine for simple imprisonment for 2 months.
18. The learned lower appellate court also scrutinized the
evidences on record and considered the arguments advanced
on behalf of the parties and held that the learned trial court has
rightly considered the materials on record and convicted the
petitioner for offence under Section 498A and the conviction of
the petitioner is based on substantive evidence and that there
was nothing to disbelieve the version of the complainant.
19. This Court finds that the learned courts below have
convicted the petitioner for offence under section 498A IPC by
concurrent findings recorded on the basis of materials on
record. This Court does not find any illegality or perversity in
the impugned judgements calling for any interference in
revisional jurisdiction. This Court also finds that although the
marriage had taken place as back as in the year 1983 and the
complaint case was filed in the year 1999, but there was
continuous cause of action as stated and proved by the
complainant and the last incident had taken place in the year
1998 when the complainant was ultimately thrown out from
her matrimonial house that too when she was 6 months
pregnant and thereafter, she gave birth to 4th child.
20. Accordingly, the conviction of the petitioner is upheld.
On the point of sentence
21. Considering the point of sentence of the petitioner, this
Court finds that the petitioner has faced the rigors of criminal
case for a very long time i.e. since 1999 and accordingly about
21 years have elapsed. The petitioner has remained in custody
during the pendency of the present case when he surrendered
on 25.10.2013 and was granted bail by this Court vide order
dated 06.12.2013 and as submitted by the learned counsel for
the petitioner, he was released on 11.12.2013. No criminal
antecedent of the petitioner is reflected from the records of this
case and it has been submitted by the learned counsel for the
petitioner that the petitioner has no criminal antecedent which
has not been disputed by the learned counsel appearing on
behalf of the State. The present age of the petitioner is more
than 51 years. Considering the aforesaid facts and
circumstances of this case, this Court is of the considered view
that ends of justice would be met if the sentence of the
petitioner is modified to some extent. Accordingly, the sentence
of the petitioner is modified by reducing it to six months with
fine of Rs.52,000/- to be deposited by the petitioner before the
learned court below within a period of six months from the
date of communication of this order to the learned court below.
In case the fine amount is not deposited by the petitioner within
the stipulated period, the petitioner would serve the sentence
imposed by the learned court below. The fine amount so
deposited by the petitioner is directed to be remitted to the
complainant after due identification.
22. In view of the aforesaid findings, the revision petition is
disposed of with aforesaid modification of sentence.
23. Pending interlocutory application, if any, is dismissed as
not pressed.
24. Let the lower court records be sent back immediately to
the court concerned.
25. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Saurav/
