Jharkhand High Court
Navlal Sahu vs State Of Jharkhand on 30 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 217 of 2012
Navlal Sahu, Son of Kishun Sahu
Resident of village - Ghunsuli, P.O. Ghunsuli, P.S. Karra,
District - Khunti ... ... Petitioner
Versus
State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Dilip Kumar Prasad, Advocate
For the Opp. Party-State : Mr. P.D. Agrawal, Advocate
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Through Video Conferencing
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14/30.06.2021 Heard Mr. Dilip Kumar Prasad, learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. P.D. Agrawal, learned counsel appearing on
behalf of the opposite party - State.
3. The instant revision application has been filed against the
judgement dated 21.02.2011 passed by learned Additional
Judicial Commissioner-I, Khunti in Cr. Appeal No. 14 of 2010
affirming the judgement of conviction of the petitioner for
offence under Section 498A of Indian Penal Code. The learned
appellate court acquitted the petitioner for alleged offence
under Section 494 of Indian Penal Code by holding that the case
under the said section was not proved beyond reasonable
doubt. The learned appellate court also acquitted the petitioner
for offence under Section 4 of Dowry Prohibition Act, 1961 by
holding that there was no specific evidence for demand of
Dowry for the said offence. However, the learned appellate
court upheld the conviction under Section 498A IPC and
modified the sentence of the petitioner for offence under
Section 498A of Indian Penal Code by reducing it to Rigorous
Imprisonment for a period of one year and six months and fine
of Rs. 2000/-.
4. The trial court judgement was passed by learned S.D.J.M.,
Khunti on 29.01.2010 in Karra P.S. Case No. 31 of 2005
corresponding to G.R. No. 223 of 2005 by which the learned
trial court convicted the petitioner under Section 498A/494 of
Indian Penal Code and also under Section 4 of Dowry
Prohibition Act, 1961. The petitioner was sentenced for two
years Rigorous Imprisonment and fine of Rs. 2,000/- for offence
under Section 498A of Indian Penal Code and also two years
Rigorous Imprisonment and fine of Rs. 2,000/- for offence
under Section 494 of Indian Penal Code. Learned trial court also
convicted and sentenced the petitioner for six months Simple
Imprisonment and fine of Rs. 2,000/- for offence under Section
4 of Dowry Prohibition Act, 1961. The sentences were directed
to run concurrently. Each of the sentences of fine had a default
clause indicating further imprisonment in case of non-deposit
of fine. So far as offence under Section 498A of Indian Penal
Code is concerned, it was indicated that the in case of default of
payment of fine, there would be further three months'
imprisonment.
Arguments on behalf of the petitioner
5. Learned counsel for the petitioner submits that although
the learned trial court had convicted the petitioner-husband for
alleged offence under Section 494/498A of Indian Penal Code
as well as Section 4 of the Dowry Prohibition Act, 1961, but the
learned appellate court had acquitted the petitioner for offence
under Section 494 of Indian Penal Code as well as Section 4 of
the Dowry Prohibition Act, 1961. He submits that the learned
appellate court after appreciating the materials on record, gave
a specific finding that no specific evidence was there on record
for offence under Section 4 of the Dowry Prohibition Act, 1961.
He further submits that the offence under Section 494 of Indian
Penal Code was held to be not proved beyond reasonable doubt
against the petitioner. Learned counsel submits that the main
cause of dispute between the petitioner and his wife was that
it was alleged that the two children were begotten by her from
third person namely Manoj Kumar and not from the accused-
husband.
6. Learned counsel submits that once the demand of dowry
could not be proved and there was acquittal under Section 4 of
the Dowry Prohibition Act, 1961, the conviction under Section
498A of Indian Penal Code could not have been sustained by
the learned appellate court without there being any material to
show that the cruelty was of a grave nature and it fell within
the definition of 'cruelty' under explanation (a) of Section 498A
of Indian Penal Code. Learned counsel also submits that as the
demand of any property including dowry could not be proved,
therefore the cruelty did not fall under explanation (b) of
Section 498A of Indian penal Code.
7. Learned counsel for the petitioner further submits that
the learned appellate court while sustaining the conviction
under Section 498A of Indian Penal Code held that since the
husband-accused had left the wife and has not been
maintaining her, this has caused cruelty and mental torture to
the informant wife. Learned counsel submits that no case for
maintenance was ever filed by the wife. He further submits that
the finding recorded by the learned appellate court was not
sufficient to sustain the conviction of the petitioner under
Section 498A of the Indian Penal Code as the dowry demand
was not proved and the torture to the extent referred to under
explanation (a) of Section 498A of Indian Penal Code was also
not proved. Learned counsel submits that in the aforesaid facts
and circumstances of the case, the conviction of the petitioner
under Section 498A of Indian Penal Code cannot be sustained in
the eyes of law and the impugned appellate court judgment
confirming the conviction under Section 498A of the Indian
Penal Code calls for interference in revisional jurisdiction to
meet the ends of justice.
Arguments on behalf of the opposite party- State
8. Learned counsel appearing on behalf of the State, on the
other hand, while opposing the prayer has submitted that both
the learned courts below have convicted the petitioner under
Section 498A of Indian Penal Code and accordingly, the same
does not call for any interference. However, during the course
of argument, learned counsel for the State could not dispute the
fact that the allegation regarding demand of property/dowry
was held to be not proved at the appellate stage and there is no
finding recorded by the learned appellate court regarding the
nature of cruelty that falls within the meaning of 'cruelty' under
explanation (a) to Section 498A of Indian Penal Code.
Findings of this Court
9. The prosecution case is based on a written report of the
wife of the petitioner namely Shanti Devi to officer in-charge of
Karra police station. In the said report, she alleged that she was
married on 02.06.1998 to the petitioner, but after some days of
marriage, her husband subjected her to cruelty and asked her to
bring money from her parents and when she could not bring
money, her husband assaulted and asked her to go out of his
house. Her husband used to assault her and subsequently,
stopped giving food. It has also been alleged that the petitioner
burned the clothes of the informant and her two children and
asked to kill the two children. Thereafter, she came to her
father's house in January, 2004. It was also alleged that the
petitioner had undertaken second marriage.
10. On the basis of aforesaid information, police registered
the case as Karra P.S. Case No. 31 of 2005 dated 03.05.2005 and
after investigation, the charge-sheet was submitted under
Section 498A/494 of Indian Penal Code and Section ¾ of Dowry
Prohibition Act, 1961. Ultimately, charge was framed for
offence under Section 498A/494 of Indian Penal Code and
Section 4 of Dowry Prohibition Act, 1961.
11. During the course of trial, the prosecution had examined
altogether ten witnesses. Amongst them, P.W. 1 was the father
of the informant and P.W. 2 was the informant herself. P.W. 3
and 4 were co-villagers. The prosecution witnesses 9 and 10 did
not support the prosecution case and they were declared
hostile. Further, the prosecution witness nos. 5, 6 and 7 did not
support the prosecution case of assault and torture of the
informant nor they supported the case of second marriage of
the petitioner. Accordingly, these witnesses i.e. P.W. Nos. 5, 6
and 7 were declared hostile.
However, the P.W. 8 had supported the fact about marriage of
the petitioner with the informant and birth of two children.
P.W. 8 had also stated that there was frequent quarrel between
the petitioner and the informant on account of which, the
informant used to stay with her father along with her two girl
children. This witness had also supported the prosecution case
on the point of second marriage of the petitioner and had stated
that the petitioner has undertaken second marriage and he is
living with his second wife as husband and wife and out of
such wedlock, one girl child has been born. Thus, P.W. 8 had
fully supported the prosecution case.
P.W. 4 had also supported the fact that the informant was wife
of the petitioner and that the petitioner had undertaken second
marriage and he had seen the petitioner along with the second
wife who used to move around the society as husband and
wife. The prosecution witness no. 3 had supported the fact of
second marriage and he has stated that he had attended the
second marriage. P.W. 1 has also fully supported the
prosecution case on the point of demand and torture of the
informant and that she was thrown out of her matrimonial
house on account of non-fulfilment of demand. P.W. 1 had also
supported the fact that the petitioner had undertaken second
marriage during the life-time of his first wife.
12. The defence had produced one witness. He stated that on
account of dispute between the petitioner and the informant,
there has been panchyati and the informant admitted that the
two children were begotten from a third person namely, Manoj
Kumar and the document regarding panchyati was marked as
exhibit A with objection from the side of the prosecution. He
has also stated that the panchyati was conducted on 17.12.2000
and the document was prepared on 07.12.2002.
It was further the case of the defence that the complainant was
living with her parents by her own free will and she does not
want to live with the petitioner.
13. It is not in dispute that the marriage was solemnized
between the petitioner and the informant on 02.06.1998 and
thereafter, 02 children were born to the informant.
14. This Court finds that the specific case of the prosecution
was that there was a demand of Rs.50,000/- as dowry and on
account of non-fulfillment of the demand, the informant was
assaulted and tortured. It was also alleged that on account of
non-fulfillment of demand, the informant was threatened to be
killed along with her two children. The informant was
ultimately thrown out of her matrimonial house in the month of
January, 2004 along with her two children and since then, she
has been living with her parents. It has also been alleged that
the petitioner had performed second marriage. The FIR was
filed on 03.05.2005 making the aforesaid allegations.
15. It is not in dispute that neither the petitioner filed any
case for restitution of conjugal rights against the informant nor
the informant filed any petition claiming maintenance from the
petitioner.
16. It was never the case of the prosecution that informant
was being tortured, mentally or physically, on account of the
allegation that the two children were not begotten from the
present petitioner- the husband.
17. As per the defence, the crux of the dispute was the
allegation against the informant that the children were begotten
by the informant through a third person namely Manoj Kumar
and not through her husband- the petitioner. In order to
support the aforesaid, the defence has filed exhibit A (marked
with objection) which is a paper claimed to have been prepared
during Panchayati and it is alleged that the informant had
admitted that the children were begotten from one Manoj
Kumar and not from the petitioner.
18. The learned trial court convicted the petitioner for offence
under Section 498(A)/494 IPC as well as for offence under
Section 4 of Dowry Prohibition Act, 1961. The trial court held
that there was a demand of dowry and for this the informant
was tortured by the petitioner and was thrown out of her
matrimonial house. It was also held that the petitioner had
performed second marriage during the life time of the
informant.
19. The learned appellate court, inter alia, considered the
defence evidence, and recorded that some of the relevant
witnesses in connection with Exhibit- A were not produced
before the court. The learned appellate court found that the
marriage was held on 02.06.1998, the case was lodged on
03.05.2005 and Panchayati was held on 07.12.2002, which
showed that there was continuous disturbance between the
petitioner and the informant and the witnesses have been
examined in the year 2008 who had stated that the informant
was living separately for 8 to 9 years from her husband which
showed that the informant was living separately since the year
2000. The learned appellate court found that from the year 2000,
the informant has been living separately from her husband and
after the marriage of two years, they were separated, but the
informant has got two children and, on this question, there was
no specific evidence. The learned appellate court recorded that
there was no specific evidence of second marriage of the
petitioner. In such background, the learned appellate court
acquitted the petitioner for alleged offence under Section 494
IPC.
20. The learned appellate court, vide para 11, held that so far
as dowry is concerned, there is no specific witness on this point
that the accused demanded Rs. 50,000/- and this dowry is said
to have been demanded after some year of marriage and the
demand was not at pre-marital stage. The learned appellate
court also recorded that no specific injury was proved and the
Exhibit- A produced by the defence supported the fact that
there was dispute between the husband and wife over the
parentage of children. There is no evidence that informant had
filed any case for maintenance.
21. The learned appellate court recorded that there was no
specific evidence for the offence under Section 4 of Dowry
Prohibition Act, 1961 and thus, acquitted the petitioner for
alleged offence under Section 4 of Dowry Prohibition Act, 1961.
22. Thus, the learned appellate court acquitted the petitioner
for alleged offence under Section 494 IPC and also under
Section 4 of Dowry Prohibition Act, 1961 but the same were
never challenged by the informant of the case. Accordingly, the
acquittal of the petitioner under the aforesaid sections became
final.
23. However, the learned appellate court upheld the
conviction of the petitioner under Section 498(A) of Indian
Penal Code. While upholding the conviction under Section
498(A) of Indian Penal Code, the learned appellate court
specifically held in para 12 as under:
"12. Although no evidence of physical torture has been produced
but the dispute between them is that Shanti Devi wife of the accused
has been living in her father's House for last 8-9 years with her two
daughter. The defence case is that informant Shanti Devi is not
residing with Navlal Sahu. Although the defence witness says that
in the panchayat Sahnti Devi has told that two daughters have born
from Manoj Kumar another person then husband. But I find that
there is no such evidence that accused appellant had filed a Civil
Suit for the restitution of conjugal rights. The statement of accused
that wife Shanti Devi is living with his parents house with her own
will is not supported with the conduct of the accused. Since the
husband accused has left his wife and has not been maintaining her
so this has caused cruelty and torture mentally to the wife
informant. Therefore, I come to this conclusion that appellant has
been rightly convicted u/s 498A IPC by the lower court for causing
mental torture to his wife."
24. The learned trial court was of the view that the
prosecution was able to prove the case and accordingly,
convicted the petitioner for offence under Section 498A/494 of
IPC as well as Section 4 of Dowry Prohibition Act. The
appellate court recorded that there was no specific witness on
the point of demand of dowry of Rs. 50,000/- and no specific
injury was proved. In this background, the learned appellate
court acquitted the petitioner for offence under Section 4 of
Dowry Prohibition Act, 1961.
25. Admittedly, the finding of the learned appellate court
regarding acquittal of the petitioner under Section 4 of the
Dowry Prohibition Act as well as acquittal of the petitioner
under Section 494 of Indian Penal Code has not been challenged
by the informant and the same has attained finality.
26. The learned appellate court found that the demand of
money by way of dowry was not proved, but still upheld the
conviction of the petitioner under Section 498A of Indian Penal
Code. It has been held by the learned appellate court that
although there is no evidence of physical torture produced from
the side of the informant, but the appellate court rejected the
statement of the petitioner that informant was living with her
parents on her own will. The learned appellate court was of the
view that since the petitioner did not file any petition for
restitution of conjugal rights and has left his wife and has not
been maintaining her so far, so this was the cause of cruelty and
mental torture to the informant and accordingly, the learned
lower appellate court was of the view that the petitioner has
been rightly convicted under Section 498A of the Indian Penal
Code by the learned trial court for conducting mental torture to
his wife.
27. This Court finds that in view of the specific finding
recorded by the learned appellate court regarding failure of the
prosecution to prove the demand of money by way of dowry
and consequent acquittal for alleged offence under Section 4 of
Dowry Prohibition Act, the conviction of the petitioner cannot
be sustained by referring to clause (b) of the explanation to
Section 498A of Indian Penal Code as a demand of property by
itself has not been proved.
28. The conviction of the petitioner under Section 498A of
Indian Penal Code is required to be seen in the light of the
explanation (a) to Section 498A of Indian Penal Code which
provides that the element of cruelty is classified as follows:
(i) any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide, or
(ii) any willful act which is likely to cause grave injury to the
woman, or
(iii) any willful act which is likely to cause danger to life, limb
or health (whether mental or physical) of the woman.
29. This Court finds that the learned lower appellate court
has reached a conclusion of mental cruelty to the informant on
the ground that no petition for restitution of conjugal rights was
filed from the side of the husband and that he has not been
maintaining his wife - the informant.
30. It is to be examined by this court under the facts and
circumstances of this case as to whether the aforesaid act of
mental cruelty can be said to be cruelty within the meaning of
explanation (a) to Section 498A of Indian Penal Code.
31. In the judgement passed by the Hon'ble Supreme Court
reported in (2009) 13 SCC 330 (Manju Ram Kalita Vs. State of
Assam), it has been held in para 14 and 21 as under:
"14. In the instant case, as the allegation of demand of dowry is
not there, we are not concerned with clause (b) of the
Explanation. The elements of cruelty so far as clause (a) is
concerned, have been classified as follows:
(i) any "wilful" conduct which is of such a nature as is likely to
drive the woman to commit suicide; or
(ii) any "wilful" conduct which is likely to cause grave injury to
the woman; or
(iii) any "wilful" act which is likely to cause danger to life, limb
or health, whether physical or mental of the woman.
21. "Cruelty" for the purpose of Section 498-A IPC is to be
established in the context of Section 498-A IPC as it may be
different from other statutory provisions. It is to be
determined/inferred by considering the conduct of the man,
weighing the gravity or seriousness of his acts and to find out as
to whether it is likely to drive the woman to commit suicide, etc.
It is to be established that the woman has been subjected to
cruelty continuously/persistently or at least in close proximity of
time of lodging the complaint. Petty quarrels cannot be termed as
"cruelty" to attract the provisions of Section 498-A IPC.
Causing mental torture to the extent that it becomes unbearable
may be termed as cruelty."
32. The learned appellate court has recorded that there was
mental cruelty meted out to the informant (wife) of the case by
the fact that the petitioner husband had left her without any
cogent reason and had not been maintaining her. This court
also finds that the learned lower appellate court has recorded
that the petitioner and the informant were living separately
since the year 2000 and the case was filed on 03.05.2005.
33. This Court is of the considered view that the nature of
mental cruelty as recorded by the learned appellate court,
which is the basis for sustaining the conviction of the petitioner
under Section 498A of Indian Penal Code, has not been weighed
by the learned appellate court in the light of the gravity or
seriousness of the act/omission of the petitioner so as to bring it
within the meaning of cruelty under explanation (a) to Section
498A of Indian Penal Code in view of the law laid down by the
Hon'ble Supreme Court in para 21 of the aforesaid judgement.
34. In light of the findings of the nature of mental cruelty as
recorded by the learned appellate court i.e. leaving the
informant wife without any cogent reason and not maintaining
her, this court is of the considered view that the gravity or
seriousness of the acts/omissions of the petitioner does not fall
within the meaning of the term "cruelty" for the purposes of
section 498A of IPC. Such acts/omissions are neither likely to
drive the woman to commit suicide, etc. nor the extent of
mental torture can be treated as unbearable to be covered by the
term cruelty as per explanation (a) to Section 498A of Indian
Penal Code. This Court is of the considered view that non-
examination of the gravity or seriousness of the mental cruelty
meted out to the informant while sustaining the conviction
under section 498A IPC amounts to non-application of judicial
mind by the learned appellate court and is therefore perverse
and suffers from patent illegality, calling for interference in
revisional jurisdiction to meet the ends of justice.
35. In view of the aforesaid findings, the impugned
judgement and conviction of the petitioner under Section 498A
of Indian Penal Code cannot be sustained in the eyes of law and
is accordingly set-aside to the extent it relates to conviction of
the petitioner under Section 498A of Indian Penal Code. The
petitioner is acquitted from the charges under Section 498A of
Indian Penal Code. The petitioner has already been acquitted
from the other charges by the learned appellate court.
36. In view of the aforesaid findings, this revision petition is
allowed.
37. The petitioner is discharged from the liabilities under the
bail bonds furnished by him.
38. Pending interlocutory applications are dismissed as not
pressed.
39. Let the lower court records be sent back to the court
concerned.
40. Let this order be communicated to the court concerned
through 'FAX/ e-mail'.
(Anubha Rawat Choudhary, J.)
Pankaj/-
