Jharkhand High Court
Sohar Rana vs The State Of Jharkhand on 17 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1751 of 2004
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(Against the judgment of conviction dated 30.06.2004 and order of sentence
dated 05.07.2004 passed by learned Additional Sessions Judge, Fast Track
Court No. IV, Hazaribagh.)
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Sohar Rana ....Appellant
-Versus-
The State of Jharkhand ....Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Pandey Neeraj Rai, Advocate
For the Respondent : Mrs. Nehala Sharmin, A.P.P
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15/17.08.2023 Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction and
order of sentence dated 30.06.2004 & 05.07.2004, respectively passed by
the learned Additional Sessions Judge, Fast Track Court No. IV,
Hazaribagh; whereby the appellant was convicted for the offence
punishable under Sections 498A I.P.C and sentenced to pay a fine of Rs.
10,000/-. In default in payment of fine, further ordered to undergo S.I for
1 year.
3. The prosecution case in brief is that the marriage of the
complainant and accused was solemnized on 17.05.1995 according to
Hindu rites. At the time of marriage, father of the complainant had given
Rs. 1 Lakh in cash, jewellery etc. After the marriage, she went to her
Sasural and out of their wedlock two children were born. Her in-laws used
to torture her regularly for demand of dowry, but she showed her inability
as she had two unmarried sisters. Despite of fact, father of the complainant
gave Rs. 75,000/- in cash. Thereafter, an allegation was attributed upon the
complainant that she got herself operated for the purpose of having illicit
relationship. On 28.05.2000, kerosene oil was sprinkled upon her, but she
could be saved on raising alarm.
4. Learned counsel for the appellant made the following
submissions:
(i) Though the appellant along with other co-accused
(relatives) were charge-sheeted for the offence under Section
498A/307/406 I.P.C and 3/ 4 of Dowry of Prohibition Act, but all
the co-accused along with the appellant were acquitted from the
charge under Sections 307/406 I.P.C and 3/4 of Dowry of
Prohibition Act. Further, except the present appellant, the other
relatives/co-accused were also acquitted from the charge of
Section 498A I.P.C. Referring the aforesaid fact, learned counsel
submits that for the same set of evidence the other co-accused has
been acquitted even under Section 498A I.P.C; as such the
appellant deserves the same treatment.
(ii) So far as conviction under Section 498A I.P.C against
this appellant is concerned; it appears that learned trial court has
taken into reference that the appellant has used words regarding
illicit relationship of her wife and therefore he has opined that
allegation of unchastity about the character of the complainant
amounts to mental cruelty. Referring upon this observation of
learned trial court, he contended that as per the settled principle of
criminal jurisprudence, if any person is to be convicted; specific
query on that behalf has to be asked from the accused under
Section 313 Cr.P.C,; whereas in the instant case, only a vague
question was asked that the appellant used to give slank etc.
(iii) So far as acquittal of the appellant with regard to
Dowry of Prohibition Act and other provisions of I.P.C, is
concerned; the complainant filed a revision application before this
Court being Cr. Revision No. 954 of 2004, which was ultimately
dismissed as withdrawn. This clearly goes to show that the finding
of learned trial court so far as it relates to other Sections i.e.,
307/406 I.P.C and 3/4 of Dowry of Prohibition Act has been
upheld. He also referred to the judgment passed by learned family
court in maintenance case, which was filed by the informant-wife
which was also dismissed and the informant-wife subsequently
filed a revision application and Coordinate Bench of this Court in
the said revision application has observed that there was no
atrocity committed by the present appellant against the wife; as
such the impugned judgment requires interference and the
appellant may be acquitted from the charge levelled against him.
5. Ms. Nehala Sharmin, learned A.P.P. for the State opposed the
prayer for acquittal and submits that no error has been committed by
learned trial court.
6. Having heard learned counsel for the parties and after going
through the impugned judgment and the documents available on L.C.R, it
appears that the appellant has been convicted by learned trial court only for
the offence under Section 498A I.P.C; thus, for brevity, relevant portion of
the judgment is quoted hereinbelow:
"13. The learned counsel for the accused persons has stated that so far the
allegation of demand of dowry has not been proved beyond reasonable
doubts at the same time it is found that regarding character of the
complainant certain allegations has been made subsequent to her family
planning operation. In para 11 of the complaint petition it has been stated by
the complainant herself that there was allegation that she had got her family
planning operation for having illicit relationship. It has not been
controverted by any of the witnesses examined in this case. There are several
letters available on the record which go to show that relationship between
wife and husband was quite normal till 1999. It is considered opinion of this
court that allegation of unchastity about the character of the complainant
amounts to mental cruelty U/s 498A I.P.C She had also apprehension that
she would be killed if she lives with her husband. There is no specific
allegation against the other accused persons except accused Sohar Rana and
so other six accused persons are acquitted from the charge U/s 498A I.P.C
but accused Sohar Rana is held guilty for the offence U/s 498A I.P.C"
7. From the aforesaid judgment, it clearly transpires that learned trial
court has observed that relationship between the wife and husband was
quite normal till 1999. The said observation of learned trail court was given
on the basis of Para-11 of the complaint petition. Further, learned trial court
has observed that the allegation of unchastity about character of the
complainant amounts to mental cruelty.
In this regard, the law is now well-settled that if any accused person
is to be convicted, then a specific question is to be asked under Section 313
Cr.P.C. For brevity, Section 313 Cr. P.C is quoted hereinbelow:
"313. Power to examine the accused.--(1) In every inquiry or
trial, for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the
Court--
(a) may at any stage, without previously warning the accused, put
such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question him
generally on the case:
Provided that in a summons case, where the Court has
dispensed with the personal attendance of the accused, it may also
dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is
examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by giving
false answers to them.
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other offence
which such answers may tend to show he has committed.
[(5) The Court may take help of Prosecutor and Defence
Counsel in preparing relevant questions which are to be put to the
accused and the Court may permit filing of written statement by
the accused as sufficient compliance of this section.]
8. In the instant case, after going through the statement recorded by
learned trial court, it nowhere transpires that there was any question with
the appellant with regard to the specific allegation of unchastity made by
him to the complainant-wife; as such on this score alone the impugned
order requires interference.
Reference, in this regard may be made to the judgment passed in
the case of Ajay Singh vs. State of Maharashtra reported in (2007) 12 SCC
341, wherein on the issue of statement made under Section 313 Cr.P.C, the
Hon'ble Apex Court has held in Paras-3,11,13,14 & 15 as under:
"3. Prosecution version as unfolded during trial is as follows:
The appellant-accused was tried on a charge of having committed
murder of his wife Smt Latabai (hereinafter referred to as "the
deceased") by pouring kerosene on her person and setting her
ablaze in the night of 29-4-1993 i.e. at about 1.30 a.m. in Police
Quarter No. 203/3 at Raghuji Nagar, Sakkardara at Nagpur. The
appellant-accused was residing in the said quarter along with his
wife, the deceased and children. On the fateful night when the
neighbouring residents, mostly police personnel were in their
respective quarters and sleeping in the courtyards, they heard
sound of the tape recorder, which was being played by the
appellant-accused, at about 1.30 a.m. in the night which awakened
them. They heard the appellant-accused and his wife quarrelling
and saw the appellant-accused dragging the deceased inside the
house by holding her hands and after a short while they noticed the
appellant-accused coming out of his quarters and shouting "kaka
Lata mere hatho se mar gai" and fled away. Thereafter, the
neighbours entered the quarters of the appellant-accused and saw
that Lata had caught fire. They tried to extinguish the fire, but, as
she had sustained excessive burns before she could be removed to
hospital, she died on the spot. Due to this incident, all the people in
the neighbourhood had gathered at the place of the incident and
report (Ext. 80) in the matter came to be lodged by Police
Constable Krishna Sadashiv Lute (PW 1) at Police Station
Sakkardara. The said report was taken down in the pro forma
prescribed under Section 154 of the Code of Criminal Procedure,
1973 (in short "the Code") which is Ext. 19, by PSI Kale (PW 11).
11. So far as the prosecution case that kerosene was found on the accused's
dress is concerned, it is to be noted that no question in this regard was put
to the accused while he was examined under Section 313 of the Code.
13. The object of examination under this section is to give the accused an
opportunity to explain the case made against him. This statement can be
taken into consideration in judging his innocence or guilt. Where there is an
onus on the accused to discharge, it depends on the facts and circumstances
of the case if such statement discharges the onus.
14. The word "generally" in sub-section (1)(b) does not limit the nature of
the questioning to one or more questions of a general nature relating to the
case, but it means that the question should relate to the whole case generally
and should also be limited to any particular part or parts of it. The question
must be framed in such a way as to enable the accused to know what he is
to explain, what are the circumstances which are against him and for
which an explanation is needed. The whole object of the section is to afford
the accused a fair and proper opportunity of explaining circumstances
which appear against him and that the questions must be fair and must be
couched in a form which an ignorant or illiterate person will be able to
appreciate and understand. A conviction based on the accused's failure to
explain what he was never asked to explain is bad in law. The whole object
of enacting Section 313 of the Code was that the attention of the accused
should be drawn to the specific points in the charge and in the evidence on
which the prosecution claims that the case is made out against the accused
so that he may be able to give such explanation as he desires to give.
15. The importance of observing faithfully and fairly the provisions of
Section 313 of the Code cannot be too strongly stressed:
"30. ... it is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say about them.
He must be questioned separately about each material circumstance
which is intended to be used against him. ... The questioning must
therefore be fair and must be couched in a form which an ignorant
or illiterate person will be able to appreciate and understand. Even
when an accused is not illiterate, his mind is apt to be perturbed
when he is facing a charge of murder. ... Fairness, therefore,
requires that each material circumstance should be put simply and
separately in a way that an illiterate mind, or one which is
perturbed or confused, can readily appreciate and understand."
[Ed. : As observed in Tara Singh v. State, 1951 SCC 903 : AIR 1951
SC 441, pp. 445-46, para 30.]"
Emphasis supplied
9. One more interesting point is to be seen in the instant case that
after refusal of maintenance by learned Family Court, the informant
complainant has filed one Criminal Revision no. 309 of 2007, wherein the
Coordinate Bench of this Court after going the entire judgment and the
documents in the said maintenance case, has observed as under. Relevant
portion of the judgment passed in Criminal Revision no. 309 of 2007 is
quoted herein below:-
".............. From the perusal of the evidence of the petitioner who was
examined as A.W.2, it transpires that she had never complained to anybody
regarding the atrocity meted out to her. She has admitted that she has
written several letters to the opposite party but she had never complained
regarding his ill behaviour........................"
The purpose of referring the aforesaid portion of the judgment
passed in revision application is that Coordinate Bench of this Court has
held that she had not complained anywhere stating the fact that she was
tortured at the hand of opposite party.
All these go to show that the appellant has been convicted only of
on one passing reference, which was made in complaint application that
sometime the petitioner has alleged about her character and that was the
sole ground for convicting the appellant.
10. The law is now no more res Integra that no conviction should be
made on the allegation if the same has been made on trivial issues. In this
regard, reference may be made to the judgment passed in the case of Manju
Ram Kalita v. State of Assam, reported in (2009) 13 SCC 330, wherein it
has been held that petty quarrels cannot be termed as "cruelty" to attract the
provisions of Section 498-A IPC. The Hon'ble Apex Court has held in
Para-21.
"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."
12. Looking to the overall facts and circumstances of this case, this
Court is having no hesitation in holding that even accepting the said
allegation of complainant-wife about unchastity made upon her by the
appellant; that might be sole incidence and for that the appellant should not
be convicted for the offence under Section 498A IPC.
13. Having regard to the aforesaid discussions, the impugned
judgment passed by the learned trial court requires interference.
Accordingly, the judgment of judgment of conviction and order of sentence
dated 30.06.2004 & 05.07.2004, respectively passed by learned Additional
Sessions Judge, Fast Track Court No. IV, Hazaribagh, is hereby, quashed
and set aside. As a result, the instant appeal stands allowed.
14. The appellant shall be discharged from the liability of his bail
bond.
15. Let a copy of this order be communicated to the trial Court and
the LCR be sent to the court concerned forthwith.
(Deepak Roshan, J.)
Jk
AFR
