Jharkhand High Court
Basiruddin Khan Son Of Late Latif Khan vs The State Of Jharkhand on 16 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1262 of 2017
1. Basiruddin Khan son of Late Latif Khan
2. Parwez Alam @ Pravej Alam son of Basiruddin Khan
3. Jahada Bibi @ Johida Bibi wife of Basiruddin Khan
4. Alimuddin Khan son of Late Latif Khan
All residents of Village- Dumariya, P.O.- Dumariya, P.S.- Garhwa,
District- Palamau now Garhwa (Jharkhand) ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Gulshan Shiri wife of Parwez Alam now wife of Seikh Md. Nizamuddin,
at present Village- Pipra, P.O.- Dumariya, P.S. & District- Garhwa
(Jharkhand) ... ... Opp. Parties
With
Cr. Rev. No. 1524 of 2017
Gulshan Shiri D/o Md. Idris Khan W/o Parwez Alam at present resident of
Village- Pipra, P.O.- Dumariya and P.S.- Garhwa, District-Garhwa
... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Basiruddin Khan, son of Late Latif Khan
3. Parwez Alam @ Pravej Alam son of Basiruddin Khan
4. Jahada Bibi @ Jahida Bibi W/o Basiruddin Khan
5. Alimuddin Khan, son of Late Latif Khan
All resident of Village- Dumaria, P.O.- Dumariya and P.S.- Garhwa,
District- Garhwa (Jharkhand) ... ... Opp. Parties
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner(s) : Mr. Ajay Kumar Trivedi, Advocate
(In Cr. Rev. No. 1262/2017)
: Mr. S.T. Sajid, Advocate
Mr. Saibal Mitra, Advocate
(In Cr. Rev. No. 1524/2017)
For the O.P. No. 2 : Mr. S.T. Sajid, Advocate
(In Cr. Rev. No. 1262/2017)
For the O.P. Nos. 2 to 5 : Mr. Ajay Kumar Trivedi, Advocate
(Cr. Revision No. 1524 of 2017)
For the State : Mr. Pankaj Kumar, Public Prosecutor
(In Cr. Rev. No. 1262/2017)
Mr. Arun Kumar Roy, APP
(In Cr. Rev. No. 1524/2017)
---
Reserved on 20.12.2023 Pronounced on 16.02.2024
1. Heard the learned counsels for the parties.
2. Both these criminal revision applications arise out of judgment dated
27.07.2017 passed in Criminal Appeal No. 18 of 2012 by the learned
appellate Court.
3. Criminal Revision No. 1524 of 2017 has been filed by the complainant
of the case and Criminal Revision No. 1262 of 2017 has been filed by the
convicts.
4. The petitioners of Criminal Revision No. 1262 of 2017 were convicted
by the learned Chief Judicial Magistrate, Garhwa vide judgment dated
24.02.2012 passed in Complaint Case No. 778 of 2006 corresponding to T.R.
No. 221 of 2012 under Section 498-A/34 of the Indian Penal Code and also
under Section 3 of the Dowry Prohibition Act,1961 and were sentenced to
undergo rigorous imprisonment for two years and fine of Rs. 1,000/- each for
offence under Section 498-A of the Indian Penal Code with default clause and
further rigorous imprisonment for six months for offence punishable under
Section 3 of the Dowry Prohibition Act,1961.
5. The appellate Court confirmed the conviction but set-aside the
sentences and replaced it by Section 4 of the Probation of Offenders Act,1958
to maintain good conduct for two years with one surety each and fine imposed
under Section 498-A IPC was upheld. The learned appellate Court further
directed the convict husband (Parwez Alam) to pay compensation to the
complainant/victim lady to the extent of Rs. 25,000/- and directed the other
convicts to pay compensation to the complainant/victim lady to the extent of
Rs. 10,000/- each. All the convicts who are petitioners in Criminal Revision
No. 1262 of 2017 were directed to appear before the learned Chief Judicial
Magistrate, Garhwa within a period of one month from the appellate Court's
order dated 27.07.2017 to comply the modified sentence and it was directed
that in case of failure in making payment of compensation the same will be
realized in accordance with law.
6. The following chart would reflect the conviction/sentence given by the
trial Court and its modification by the appellate Court: -
Trial Court Appellate Court
Conviction: - under Section 498-A of i. Conviction upheld under
IPC and Section 3 of Dowry Section 498-A of IPC and
Section 3 of Dowry
Prohibition Act,1961.
Prohibition Act,1961.
Sentence under Section 498A IPC: - ii. Sentences for offence u/S 498-
two years RI and fine of Rs. 1,000/- A of IPC and Section 3 of
each and in default of payment of fine, Dowry Prohibition Act,1961
three months SI. has been set aside and replaced
Sentence under Section 3 of Dowry by Section 4 of the Probation
Prohibition Act, 1961 of Offenders Act asking the
- RI for six months. convicts to appear before the
Section 379 of IPC Court of Chief Judicial
All of them were acquitted for alleged Magistrate, Garhwa to comply
offence under Section 379 of IPC. with the modified sentence
and furnish one surety of close
relative each to maintain good
conduct for two years. Fine
amount of Rs. 1,000/- was
sustained.
iii. Victim compensation of Rs.
25,000/- to be paid by Parwez
Alam (Husband)
iv. Victim compensation @ Rs.
10,000/- each to be paid by
other three accused.
7. The petitioners of Criminal Revision No. 1262 of 2017 are aggrieved
by their conviction and dismissal of appeal against conviction and the
petitioner in Criminal Revision No. 1524 of 2017 being the
complainant/victim lady/wife of Parwez Alam (convict) is aggrieved by the
modification of sentence by the learned appellate Court as mentioned above.
Arguments of the petitioners (convicts) in Criminal Revision No. 1262 of
8. Learned counsel appearing on behalf of the petitioners in Criminal
Revision No. 1262 of 2017 submitted that the petitioners are the victims of
false case lodged by the complainant-Gulshan Shiri. The learned counsel has
submitted that the learned Court below has not properly considered the
materials on record while upholding the conviction of the petitioners. The
learned counsel has submitted that though the complainant has alleged that
she was assaulted and was thrown out of her matrimonial home, but no injury
report has been produced during trial to show that she suffered any injury,
rather the report of the doctor showed that she was suffering from malaria.
The learned counsel submitted that the order of conviction affirmed by the
appellate Court calls for interference in revisional jurisdiction.
Arguments of the petitioner (complainant-victim) in Criminal Revision
9. Learned counsel appearing on behalf of the petitioner in Criminal
Revision No. 1524 of 2017 has submitted that the modification of sentence
by the learned appellate Court and directing the convicts to furnish bond
under Section 4 of the Probation of Offenders Act suffers from illegality,
inasmuch as, no report from the Probation Officer was called for in terms of
Section 4(2) of the Probation of Offenders Act. The learned counsel has
submitted that otherwise also, the condition precedent for modifying the
sentence in the manner it has been done by the learned appellate Court has not
been satisfied and, therefore, the impugned order calls for interference. The
learned counsel has also submitted that the order passed by the learned
appellate Court has not been satisfied, inasmuch as, the required bond has not
been furnished by the convicts and the entire purpose of furnishing of bond
under Section 4 of the Probation of Offenders Act has been frustrated.
10. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court in the case of Mohd. Hashim vs. State of U.P. &
Others passed in Criminal Appeal No. 1218 of 2016 dated 28.11.2016 to
submit that the word 'expedient' has also been considered by the Hon'ble
Supreme Court and it has been held that while exercising power under Section
4 of the Probation of Offenders Act, the nature of offence and the conditions
incorporated therein are required to be considered and only if the Court forms
the opinion that it is expedient to release the convict on probation for the good
conduct regard being had to the circumstances of the case, such order could
have been passed. The learned counsel submitted that the mandate of the
provisions of Probation of Offenders Act having not been followed, the
impugned order modifying the sentence calls for interference by this Court.
11. Learned counsels appearing on behalf of the opposite parties in each of
the cases have opposed the prayer made in the respective cases.
Arguments of the State.
12. Learned counsel appearing on behalf of the State has opposed the
prayer and submitted that the impugned order passed by the learned appellate
court does not call for any interference. The learned counsel has submitted
that both the courts below have considered the materials available on record
and have upheld the conviction and so far as modification of the sentence is
concerned, the application of mind by the learned appellate Court is reflected
in the order. The learned counsel has submitted that both the husband and
wife have got re-married and this aspect of the matter has also been
considered by the learned appellate Court while modifying the sentence.
13. The learned counsel has further submitted that since the lower Court
records have been called for in the present cases but nothing is mentioned as
to whether the order passed by the learned appellate Court has been complied
by the convicts. The learned counsel has submitted that in case it has not yet
been complied, sometime may be granted to comply the same including the
payment of compensation as directed by the learned appellate Court failing
which the consequences may follow as per law.
Findings of this Court
14. 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."
15. The power of revisional court has been further explained by this Court
in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at
Para-13 which reads as under:
"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."
16. Criminal Revision No. 1262 of 2017 has been filed by the accused
persons against their conviction and modified sentence passed by the learned
appellate Court. In Criminal Revision No. 1262 of 2017, Petitioner No.2 is the
husband of the victim of the case, Petitioner No.1 is the father-in-law,
Petitioner No.3 is the mother-in-law and Petitioner No.4 is the brother of
Petitioner No.1.
17. The point for consideration is whether the learned courts below are
justified in convicting the petitioners for the offence under Section 498-A of
the IPC and for offence under Section 3 of the Dowry Prohibition Act?
18. Criminal Revision No. 1524 of 2017 has been filed by the complainant-
victim, namely, Gulshan Shiri for setting aside the part of the judgment
passed by the learned appellate Court whereby and whereunder the sentences
awarded under Sections 498-A of IPC and Section 3 of the Dowry Prohibition
Act to the convicts by the learned trial Court have been set aside and the same
have been replaced by Section 4 of the Probation of Offenders Act with
further direction to give victim compensation. It is the case of the complainant
-victim that having committed serious crime against woman, the benefit of
Section 4 of the Probation of Offenders Act, 1958 could not have been
granted to the convicts merely because the victim as well as convict husband
has re- married.
19. In Criminal Revision No. 1524 of 2017, interalia, the point for
consideration is whether the appellate Court has any power to set aside the
sentence of imprisonment and replace it by giving benefits under Section 4
of the Probation of Offenders Act instead of suspending the sentence?
And
Whether the appellate court has rightly exercised the powers under Section
4 of the Probation of Offenders Act, 1958?
20. The prosecution case is based on Complaint Case No. 778 of 2006
presented on 16.11.2006 by the Complainant- Gulshan Shiri before the
learned Chief Judicial Magistrate, Garhwa against the petitioners of Criminal
Revision No. 1262 of 2017 alleging interalia that the marriage of the
Complainant with Parwez Alam was solemnized on 02.06.2006 according to
Muslim Rites and customs and she went to her matrimonial house. After some
days, the accused persons pressurized the Complainant to bring Rs.50,000/-,
T.V., fridge, cooler, motorcycle, etc. from her father and on non-fulfilment of
the demand, they assaulted her and kept her hungry for several days which
was reported by her to her parents. Thereafter, a panchayati was held, but the
accused persons did not change their conduct. On 30.08.2006, the accused
persons tossed the complainant and assaulted her by feet and fists and left her
uncared over the open roof. On receiving information, on the next morning
her father came there and with help of neighbours took the complainant to his
house and got her treated for two days by Dr. Sanjay Kumar of Sarswati
Chikitsalay. After recovery, when the complainant was returning to her
parental house on a hired vehicle on 02.09.2006, on the way near Village-
Bana Masuriya, Pervez Alam and Basiruddin Khan assaulted the complainant
and her father and forcibly took out the complainant from the Jeep and took
her to their house and locked her in a room. On 02.09.2006, Jahada Bibi,
Parwez Alam and Basiruddin Khan forcibly tried to administer poison to the
complainant, but on raising alarm, villagers came there and rescued her and
she passed her night under the protection of other persons. On the next
morning, when the complainant started to go to her parental house, all the
accused persons, snatched away her box from her containing ornaments and
clothes worth Rs.20,000/-. Thereafter, the complainant went to Garhwa Police
Station alongwith her father, but she was told to come after one week saying
that the police is busy with the case of extremists. When even after lapse of
one and half months, no step was taken by the police, the complainant lodged
the Complaint against the accused persons.
21. On 17.04.2006, the learned C.J.M., Garhwa transferred the case to the
Court of the learned S.D.J.M., Garhwa for enquiry and disposal in accordance
with law. After enquiry under Section 202 of Cr.P.C., the learned S.D.J.M.,
Garhwa on 24.04.2007 found a prima-facie case under Sections 379 and 498-
A of the Indian Penal Code and Section 3 of the Dowry Prohibition Act
against the accused persons and accordingly summons were issued to them.
22. After appearance of the accused persons, on 14.07.2009, charges under
Sections 498A/34 and 379/34 of the Indian Penal Code and Section 3 of the
Dowry Prohibition Act were framed against the accused persons which were
read over and explained to them in Hindi to which they pleaded not guilty and
claimed to be tried. In course of trial, the complainant examined altogether 03
witnesses in support of her case.
23. CW-1 is Ainul Hoda. He is a relative of the complainant. He deposed
that on 02.06.2006, the marriage of the complainant was solemnized and after
two months, Basiruddin Khan, Alimuddin Khan and Jahada Bibi demanded
Rs.50,000/- cash, motorcycle, cooler, fridge and T.V. as dowry from her at
her matrimonial house and on non-fulfillment of the demand, the accused
persons assaulted the complainant and forced her to sleep in the roof of the
house. On receiving information, when the family members of the
complainant went there and enquired her, the accused persons did not allow
her to come with them. When her health deteriorated, he and other family
members of her parental house took the complainant to Saraswati Chikitsalay
and got her treated. After two days of treatment, when the complainant was
being taken to her parental house, Parwez and Basiruddin at Village- Bana
Masuriya took the complainant with them and they assaulted her in the night
and tried to administer poison to her, but on raising alarm, villagers came
there and saved her. On receiving information, they again went there. The
accused persons snatched away her jewelry and drove out her from her
matrimonial house. During cross-examination by the court before charge, he
admitted that he was present on the day of driving out. During cross-
examination after charge, he admitted that he had come to know about the
occurrence on 30.08.2006 and the complainant had told him that she was
assaulted.
CW-2 is Md. Idrish Khan. He is the father of the complainant. He deposed
that marriage of the complainant was solemnized with Perwez Alam on
02.06.2006 and after two months, Perwez, Basir, Jahada Bibi and Alimuddin
Khan assaulted and tortured her for Rs.50,000/- cash, motorcycle, T.V., fridge
and cooler. On receiving information, on 30.08.2006, he had gone to the
matrimonial house of the complainant and had convened a panchayati, but the
accused persons did not agree. The complainant was suffering from fever and
on the next day morning, he got her admitted in Saraswati Chikitsalay where
after treatment for two days, she was relieved. When they were taking the
Complainant to his house, all the accused persons intercepted them at Bana
Masuriya More and assaulting the Complainant took away her with them and
tried to administer poison to her in the night. On raising alarm, when the
villagers came there, the accused persons assaulted her and left her on the
roof. On receiving information, he went there and when she was taking her
articles, her articles worth Rs.20-25 thousand were snatched away by them.
During cross-examination by the court before charge, he admitted that the
complainant was treated at Saraswati Chikitsalay for fever and assaulting.
During cross-examination after charge, he admitted that after the marriage,
the complainant had gone to her matrimonial house and had stayed there for
two months and she had not gone to her matrimonial house second time and
panchayati was held several times. He further admitted that the complainant
had told him about the demand of dowry.
CW-3 is Gulshan Shiri, the complainant herself. She deposed that the
occurrence took place on 30.08.2006 at about 06.00 P.M. evening when she
was in her home, Pravej Alam, Jahada Bibi, Basiruddin Khan and Alimuddin
Khan assaulted her for bringing motorcycle, T.V., fridge, cooler and
Rs.50,000/- as dowry. When she informed her father, he came and convened a
panchayati, but the accused persons did not accept the decision of the panch.
Thereafter, her father took her to the clinic of Dr. Sanjay for treatment where
she remained admitted for two days. When her father was taking her to his
house, the accused persons came to Village- Bana Masuriya and her father
sent them alongwith them. On 02.09.2006, the accused persons locked her in
a room and Jahada Bibi gave her a drink dissolving sulphas in a bowl and
Pravej Alam and Basiruddin caught her hands and legs and Jahada Bibi tried
to administer the drink to her. On raising alarm, people gathered there and she
spent the night in the house of her neighbours. On the next morning, her
father came there and when she started going out with her box, the accused
persons snatched away the box containing her ornaments and clothes. She
exhibited her signature on the Complaint as Exhibit-1. During cross-
examination before charge, she admitted that she had remained admitted for
two days in the clinic of Dr. Sanjay for treatment. She further admitted that
there was no injury on her head. During cross-examination after charge, she
further stated that neighbour Israr had kept her in his house in the night and
on the next morning, she had sent information to her parental house through
Juhi. Thereafter, her father had come and got her treated at Saraswati
Chikitsalay and while coming to her parental house from Saraswati
Chikitsalay, the accused persons took her to her matrimonial house. She
admitted that she is living at her parental house for the last four years and
there is danger to her life at her matrimonial house. She had stayed at her
matrimonial house for two months. She further admitted that she has no
documentary evidence with regard to administering poison to her, but
examining her mouth, she came to know that she was being administered
poison.
The prosecution exhibited the following documents:
Exhibit-1 is signature of the complainant in the complaint petition.
Exhibit-2 is prescription of Saraswati Hospital.
Exhibit-2/1 is blood test report.
Exhibit-3 is list of gifts.
Exhibit-4 is photo copy of Nikah Nama.
24. On 26.07.2010, the statements of the accused persons were recorded
under Section 313 of Cr.P.C. wherein they simply denied the incriminating
evidences put to them.
25. The accused persons examined 03 witnesses in their defence. DW-1 is
Moiuddin Ansari. He deposed that he had settled the marriage between the
Complainant and Parwez Alam and the bridegroom party had not demanded
any dowry either at the time of the marriage or after the marriage. The
marriage was solemnized on 02.06.2006 and after the marriage, the
complainant was living happily at her matrimonial house. DW-2 is Sharafat
Hussain. He deposed that he does not know the complainant and the marriage
of the daughter of Idrish was solemnized 02.06.2006 and Basiruddin Khan
and others had not demanded dowry at the time of the marriage. During cross-
examination, he admitted that he has no knowledge as to whether any demand
was made after the marriage or not. DW-3 is Md. Babar Khan. He deposed
that he knows Basiruddin Khan and Parwez and the marriage of Parwez was
solemnized with the daughter of Idrish. After the marriage, he was not
involved in any panchayati.
The accused persons exhibited some documents in their defence. Exhibit-A is
certified copy of Notice of Misc. Case No. 289/2006, Exhibit-B is the
application for information by the accused Parwez Alam before the District
Education Officer alongwith information supplied to him. Exhibit-C is
Antodya Ration Card, Exhibit-D was the job card issued under NAREGA and
Exhibit-E is the certified copy of the complaint case No. 665 of 2006.
26. After scrutinizing the evidences available on record, the learned trial
Court recorded its findings at Para-27 onwards. The relevant portion of the
findings are as under:
"27. Though there are some discrepancies and minor contradictions
available in depositions of P.W.3 Complainant as well as in
deposition of P.W.2, but same are not sufficient to disbelieve the
complainant's story described in her complaint petition. Though there
are no cogent and specific evidence to establish the factum of physical
cruelty caused by the accused persons on person of the complainant,
but there are unimpeachable evidence to establish and prove that the
complainant was subjected to mental cruelty, as she has been
deprived to enjoy her matrimonial life at the instance of the accused
persons and she has been forced to take shelter in her parental house
since September, 2006. It is glaring instance of mental cruelty and
there is no doubt that accused persons are responsible for committing
mental cruelty on the person of complainant due non-fulfillment of
their demands of dowry. There is no contradiction in deposition of
P.W.3 and P.W.2 on score of dowry demand by the accused persons
from Complainant.
28. ............................
29. After careful and minute analysis of both oral and documentary
evidences available on record, I find that the accused persons had
made illegal demand of dowry in the shape of cash Rs.50,000/-, T.V.,
Fridge, Cooler, etc. from the complainant and they were compelling
the complainant to bring the same from her parents and for that they
put the complainant in such an unbearable physical and mental pain
to leave her in-laws house and to take shelter in her parental house
having no alternative option and she has been residing in her parents'
house since September, 2006."
27. Accordingly, the learned trial Court vide judgment dated 24.02.2012
passed in Trial No. 221 of 2012 convicted all the accused persons under
Sections 498-A/34 of IPC and Section 3 of the Dowry Prohibition Act, but
acquitted them from the charge under Section 379 of IPC, and sentenced them
to undergo Rigorous Imprisonment for 02 years with fine of Rs.1,000/- each
for the offence under Section 498-A of IPC and in default of payment of fine,
to further undergo Simple Imprisonment for 03 months and they were further
sentenced to undergo Rigorous Imprisonment for 06 months each for the
offence under Section 3 of the Dowry Prohibition Act and all the sentences
were directed to run concurrently.
28. The learned appellate Court also scrutinized the evidences on record
and upheld the conviction of the accused persons. The learned appellate Court
recorded its findings at Paragraph-6 of its judgment as under:
"6. Now this Court has to answer as to whether the judgment and
sentence (impugned) is based on sound reasoning in light of the
evidence available on the record on behalf of the respondent
complainant?
This Court, after diving deep into the evidence available on
the record finds that only three witnesses are examined on behalf of
the complainant/respondent namely Ainnul Hoda (C.W.1), Md. Idris
Khan (C.W.2 who happens to be the father of the complainant /
victim) and the complainant/respondent herself Gulshan Shiri (C.W.
3) who have supported the case in terms of the complaint-petition that
the complainant/victim Gulshan Shiri, just after her marriage was
subjected to mental as well as physical cruelty by assault for non-
fulfillment of dowry. Independent witnesses are not examined in this
case. In such a case for demand of dowry, mental and physical torture
for non-fulfillment of the same, no independent witness is expected to
see the occurrence as it always happens within the four corners of the
wall. Eye witness to the occurrence in such cases may be the in-law or
the parents of the victim lady, therefore non-examination of
independent witnesses in this case cannot create any dent with regard
to reliance over the evidence of the witnesses examined here in this
case viz. Md. Idris Khan (C.W. 2) and Gulshan Shiri (C.W. 3) the
victim complainant being eye witnesses and one Ainnul Hoda (C.W. 1)
being hearsay witness. No doubt there are some minor and
insignificant discrepancies in the evidence of C.W. 2 Md. Idris Khan
and C.W. 3 Gulshan Shiri the complainant/victim with regard to
manner of occurrence as incorporated in the complaint petition, but it
is well settled principle of law by the Hon'ble Apex Court that
insignificant discrepancies cannot be a ground to disbelieve the entire
evidence. Therefore, this court reaches to its conclusion that the
complainant has been able to prove its case against all the
appellant/accused beyond shadow of reasonable doubt for the charges
levelled against them u/s 498(A) of the IPC and 3 of Dowry
Prohibition Act. The judgment (impugned) is based on sound
reasoning; therefore, it requires no interference of this court and thus
the judgment impugned passed by the ld. CJM Garhwa on 24.02.2012
in Complaint Case No. 778/2006 corresponding to its trial no.
221/2012 is hereby upheld."
29. This Court further finds that the learned trial Court found
unimpeachable evidences that the accused persons demanded Rs.50,000/-
cash, T.V., fridge, cooler, etc. as dowry and tortured the complainant on
account of non-fulfillment of such demand and she was compelled to leave
her matrimonial house and to take shelter in her parental house since
September, 2006. Accordingly, the learned trial Court found sufficient
evidence for conviction of the accused persons for committing the offences
under Sections 498-A/34 of the Indian Penal Code and Section 3 of the
Dowry Prohibition Act. This Court further finds that the learned appellate
court found that the complainant witnesses have supported the case in terms
of the complaint that just after her marriage, the complainant-victim was
subjected to mental as well as physical cruelty by assault for non-fulfillment
of dowry. The learned appellate Court held that the complainant has been able
to prove her case against all the accused persons beyond shadow of all
reasonable doubt for the charges under Sections 498-A of the IPC and Section
3 of the Dowry Prohibition Act and upheld the conviction of the accused
persons.
30. This Court finds that the complainant witnesses are consistent that the
marriage of the complainant with the accused-Parwez Alam was solemnized
on 02.06.2006 and after two months, the accused persons pressurized the
complainant to bring Rs.50,000/-, T.V., fridge, cooler, motorcycle, etc. from
her father as dowry and due to non-fulfilment of the demand, they assaulted
her on 30.08.2006 and left her uncared on the roof of their house and
accordingly, all the accused persons forced the complainant to leave her
matrimonial house and she was residing at her parental house since
September, 2006. This Court finds that CW-3 complainant herself has fully
supported her case in her evidence and CW-1 and CW-2 have corroborated
her case and their evidences have substantially remained unimpeached at least
so far as demand of Rs.50,000/-, T.V., fridge, cooler, motorcycle, etc. from
her father as dowry and physical and mental torture due to non-fulfilment of
the demand is concerned.
31. So far as the argument of the learned counsel for the accused persons
that no injury has been shown is concerned, this Court is of the considered
view that considering the nature of assault as alleged and the evidence of the
victim having remained intact merely because no specific injury has been
found, the same is not a ground to interfere with the order of conviction which
has been uphold by the learned appellate Court. Absence of injury by itself
does not make the impugned orders perverse. Moreover, the fact that the
complainant was treated for malaria in the hospital also does not have any
impact so far as claim of physical and mental torture of the complainant on
account of non-fulfillment of demand of Rs.50,000/-, T.V., fridge, cooler,
motorcycle, etc. as dowry is concerned.
32. The law is well-settled that there is no scope for reappreciation of
evidences in revisional jurisdiction of this Court in absence of any illegality or
material irregularity or impropriety. The impugned judgements, so far as they
relate to the finding that the complainant was subjected to mental and physical
torture on account of non-fulfillment of demand of Rs.50,000/-, T.V., fridge,
cooler, motorcycle, etc. from her father as dowry are without any such
infirmity which may render them perverse or unacceptable.
33. Section 498(A) of the Indian Penal Code reads as under:
"498A. Husband or relative of husband of a woman subjecting her
to cruelty- Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall
also be liable to fine.
Explanation- For the purpose of this Section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand."
34. The materials on record as well as the findings of the learned trial court
and the appellant court based on appreciation of evidences on record clearly
demonstrate that the complainant was subjected to harassment with a view to
coercing her and her father to meet an unlawful demand of Rs.50,000/-, T.V.,
Fridge, Cooler, motorcycle, etc. from her father as dowry. Thus, the
ingredients of Section 498A read with cruelty as per explanation (a) to the
Section 498A of IPC are satisfied and accordingly, the conviction under
Section 498A IPC is upheld.
35. So far conviction under Section 3 of the Dowry Prohibition Act, 1961
is concerned the same calls for some deliberation.
36. Section 3 of the Dowry Prohibition Act, 1961 reads as under:
"3. Penalty for giving or taking dowry. -- (1) If any person, after the
commencement of this Act, gives or takes or abets the giving or taking
of dowry, he shall be punishable with imprisonment for a term which
shall not be less than five years, and with fine which shall not be less
than fifteen thousand rupees or the amount of the value of such dowry,
whichever is more:
Provided that the Court may, for adequate and special
reasons to be recorded in the judgment, impose a sentence of
imprisonment for a term of less than five years.
(2) Nothing in sub-Section (1) shall apply to, or in relation to,--
(a) presents which are given at the time of a marriage to the bride
(without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained
in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the
bridegroom (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained
in accordance with the rules made under this Act:
Provided further that where such presents are made by or on
behalf of the bride or any person related to the bride, such presents
are of a customary nature and the value thereof is not excessive
having regard to the financial status of the person by whom, or on
whose behalf, such presents are given."
Section 4 of the Dowry Prohibition Act, 1961 reads as under:
4. Penalty for demanding dowry. - "If any person demands, directly
or indirectly, from the parents or other relatives or guardian of a
bride or bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment for a term which shall not be less than
six months, but which may extend to two years and with fine which
may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than six months.
37. In the present case it has been proved that there was a demand of dowry
of Rs.50,000/-, T.V., Fridge, Cooler, motorcycle, etc. from the father of the
complainant but there is no finding of giving and taking of dowry. Thus, the
ingredients of Section 4 of the Dowry Prohibition Act, 1961 have been
satisfied and not that of Section 3 of Dowry Prohibition Act, 1961 and the
sentence has been awarded by the learned trial court of six months only which
is in consonance with Section 4 of the Dowry Prohibition Act, 1961. This
Court finds that the entire case of the complainant right from beginning was
of demand of dowry and torture on account of non-fulfillment of demand of
dowry but the charge was framed under Section 3 of the Dowry Prohibition
Act, 1961 instead of Section 4 of Dowry Prohibition Act, 1961. However, the
materials on record as well as the questions put to the accused while
recording their statements under Section 313 of Cr.P.C. clearly demonstrate
that the accused were well aware and put to notice with regard to the
allegation of demand of dowry and torture of the complainant which was well
proved as mentioned above and accordingly, by invoking the provisions of
Section 222 of Cr.P.C., the conviction of all accused is modified from Section
3 of Dowry Prohibition Act, 1961 to a lesser offence under Section 4 of
Dowry Prohibition Act, 1961 in order to meet the ends of justice.
38. The point in paragraph 17 above is answered accordingly. In view
of the aforesaid findings, the conviction of the petitioners of Cr. Revision
No. 1262 of 2017 under Section 498A of IPC does not call for any
interference, but conviction of the petitioners of Cr. Revision No. 1262 of
2017 under Section 3 of the Dowry Prohibition Act, 1961 is set-aside and
the petitioners are convicted under Section 4 of Dowry Prohibition Act,
1961.
On the point of sentence
39. The learned trial court had refused to extend the benefits under the
Probation of Offenders Act, 1958 to the accused persons by observing that the
crime was committed against a woman, although it was recorded that there
was no evidence with regard to previous conviction of the convicts in any
offence punishable under any law.
40. The learned trial court had sentenced the convicts to undergo Rigorous
Imprisonment for 02 years with fine of Rs.1,000/- each for the offence under
Section 498(A) of IPC and in default of payment of fine, to further undergo
Simple Imprisonment for 03 months and had further sentenced them to
undergo Rigorous Imprisonment for 06 months each for the offence under
Section 3 of the Dowry Prohibition Act and both the sentences were directed
to run concurrently.
41. The learned appellate court, upholding the conviction of all the accused
persons, modified their sentences in the following manner:
"As far as the sentence awarded by the ld. CJM Garhwa in this case
to the appellants/accused to undergo for a period of two years R.I. for
commission of offence u/s 498(A) of the IPC alongwith fine
amounting to Rs.1000/- (One thousand) to each convict as well as to
go another R.I. for six months for the offence u/s 3 of the Dowry
Prohibition Act and is ordered that all the sentences will run
concurrently is concerned, this court finds that to send the convicts in
jail in order to serve the aforesaid sentence would not meet the ends
of justice. It is argued on behalf of the appellants/accused themselves
that the complainant/respondent (victim) Gulshan Shiri as well as the
appellant/accused, husband of the complainant namely, Prawez Alam
are now re-married to another person and living separately having no
concern to each other, therefore this court feels that sending the
applicant/accused to jail would not be proper. Since the complainant /
respondent Gulshan Shiri (victim) suffered mentally as well as
physically, therefore, it is justifiable to compensate her in terms of
money, at the same time the law says that the guilty should not be left
unpunished. Nowadays there is an increasing emphasis on the
reformation and rehabilitation of the offender as a useful and self-
reliant member of society without subjecting him to the deleterious
effects of jail life and thus the Probation of Offender Act is
milestone in the progress of the modern liberal trend of reform in the
field of penology. More-so the modern criminal jurisprudence
recognizes that no one is born criminal and that a good many crimes
are the product of the socio-economic milieu, hence this court comes
to this conclusion that in lieu of sentences awarded to the appellant /
accused to go in jail for two years and six months RI for commission
of offences punishable u/s 498(A) of the IPC and 3 of Dowry
Prohibition Act respectively, it would be proper to release them u/s 4
of the Probation of the Offender Act to maintain good behaviour as
they are facing rigor of litigation since 2006. Thus, the sentence for
two years and six months R.I. for the offences u/s 498(A) of the IPC
and 3 of Dowry Prohibition Act is hereby set-aside and replaced by
Section 4 of the Probation of Offender Act to maintain good conduct
by the appellants/convicts for two years with one surety each who
must be their nearest relative. However, the imposition of fine
amounting to Rs.1000/- (One thousand) to each convict is upheld as it
would remain as it is. Further in order to compensate the victim lady
i.e. complainant Gulshan Shiri, the appellant/accused Prawez Alam
(husband) is ordered to pay a compensation to her amounting to
Rs.25,000- (Twenty Five Thousand) whereas the appellants accused
Basaruddin Khan, Jahada Bibi and Alimuddin Khan who are old aged
persons are ordered to pay a compensation to the said Gulshan Shiri
amounting to Rs.10,000 (Ten Thousand) each.
Resultantly,
The appeal is hereby dismissed with modification as aforesaid that all
the appellants shall pay a fine amounting to Rs.1000/- (One thousand)
each as well as the appellant Prawez Alam (husband) is ordered to
pay a compensation to the respondent/complainant Gulshan Shiri
amounting to Rs.25,000/- (Twenty Five Thousand) whereas the other
appellants/convicts namely, Basiruddin Khan, Jahada Bibi and
Alimuddin Khan are ordered to pay a compensation to the said
Gulshan Shiri amounting to Rs.10,000/- (Ten Thousand) each u/s 357
of the Cr.P.C. Further they are ordered to file bond to maintain good
behaviour for two years with one surety each who must be their
nearest relatives u/s 4 of the Probation of Offender Act.
Therefore, the aforesaid four appellants/convicts namely,
Prawez Alam, Basiruddin Khan, Jahada Bibi and Alimuddin Khan
are hereby directed to appear before the court of ld. C.J.M. Garhwa
within one month from this judgment to comply the modified
sentence as contained herein above. In case of failure in payment of
compensation, it would be realized in accordance with law."
42. Accordingly, this Court finds that the learned appellate court set aside
the sentences awarded under Sections 498A of IPC and Section 3 of the
Dowry Prohibition Act to the convicts by the learned trial court and replaced
the same by Section 4 of the Probation of Offenders Act to maintain good
conduct by the convicts for two years and upheld the fine amount of
Rs.1,000/- each awarded under Section 498A of IPC to them and ordered the
convict-Prawez Alam (husband) to pay Rs.25,000/- and the convicts-
Basiruddin Khan, Jahada Bibi and Alimuddin Khan to pay Rs.10,000/- each
to the Complainant-victim Gulshan Shiri under Section 357 of Cr.P.C. and
ordered the convicts to file bond to maintain good behaviour for two years
with one surety each who must be their nearest relatives under Section 4 of
the Probation of Offenders Act.
43. From perusal of the records of the case, this Court finds that till date,
the convicts have neither deposited the fine and compensation amounts as
awarded by the learned appellate court, nor they have executed any bond
under Section 4 of the Probation of Offenders Act as per the direction of the
learned appellate court.
44. Section 4 of the Probation of Offenders Act, 1958 reads as under:
"4. Power of court to release certain offenders on probation of
good conduct.--
(1) When any person is found guilty of having committed an offence
not punishable with death or imprisonment for life and the court by
which the person is found guilty is of opinion that, having regard
to the circumstances of the case including the nature of the offence
and the character of the offender, it is expedient to release him on
probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court
may, instead of sentencing him at once to any punishment direct
that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during
such period, not exceeding three years, as the court may direct, and
in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an
offender unless it is satisfied that the offender or his surety, if any,
has a fixed place of abode or regular occupation in the place over
which the court exercises jurisdiction or in which the offender is
likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-Section (1), the court shall
take into consideration the report, if any, of the probation officer
concerned in relation to the case.
(3) When an order under sub-Section (1) is made, the court may, if it
is of opinion that in the interests of the offender and of the public it
is expedient so to do, in addition pass a supervision order directing
that the offender shall remain under the supervision of a probation
officer named in the order during such period, not being less than
one year, as may be specified therein, and may in such supervision
order impose such conditions as it deems necessary for the due
supervision of the offender.
(4) The court making a supervision order under sub-Section (3) shall
require the offender, before he is released, to enter into a bond,
with or without sureties, to observe the conditions specified in
such order and such additional conditions with respect to
residence, abstention from intoxicants or any other matter as the
court may, having regard to the particular circumstances, consider
fit to impose for preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order under sub-Section (3) shall
explain to the offender the terms and conditions of the order and
shall forthwith furnish one copy of the supervision order to each of
the offenders, the sureties, if any, and the probation officer
concerned.
45. This Court finds that no minimum sentence has been prescribed under
Section 498A of the Indian Penal Code, whereas minimum sentence of six
months which may extend to two years and with fine which may extend to ten
thousand rupees has been prescribed under Section 4 of Dowry Prohibition
Act, 1961 with a proviso that the Court may, for adequate and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment for a
term of less than six months. In view of the judgement passed by the Hon'ble
Supreme court in Mohd. Hashim vs. State of U.P. & Others reported in
(2017) 2 SCC 198 the provisions of Probation of Offenders Act, 1958 would
be applicable even where the minimum imprisonment is prescribed and a
discretion has been vested in the court to give lesser than the minimum
imprisonment. Thus, this Court finds that for offences under Section 498A as
well as Section 4 of Dowry Prohibition Act, 1961 the provision of Probation
of Offenders Act, 1958 is applicable.
46. Now it is to be examined as to whether the appellate court has rightly
exercised the powers under Section 4 of the Probation of Offenders Act, 1958.
47. This Court finds that the learned appellate court while passing an order
to release them on probation of good conduct under Section 4 of the Probation
of Offenders Act, 1958 has set-aside the substantive sentences of the convicts
instead of suspending the sentences in terms of Section 4(1) of Probation of
Offenders Act, 1958 and accordingly has committed grave error of law.
Consequently, neither the required bond has been furnished nor the convicts
have suffered substantive punishment of imprisonment. Further, no report of
the probation officer in relation to the case was called for before passing the
order under Section 4 of Probation of Offenders Act, 1958. Moreover, while
passing an order to release the convicts on probation of good conduct under
Section 4 of the Probation of Offenders Act, 1958 the learned appellate court
has stated reasons which are not contemplated under Section 4 of the
Probation of Offenders Act, 1958. Power under Section 4 of Probation of
Offenders Act, 1958 is to be exercised having regard to the circumstances of
the case including the nature of the offence and the character of the offender
and if it is expedient to release the offender on probation of good conduct then
only offender can be released on furnishing bond suspending the sentence.
The learned appellate court has stated the following reasons:
(i) To send the convicts in jail in order to serve the sentences would
not meet the ends of justice.
(ii) The complainant-victim as well as the accused-husband are now
re-married to other persons and both are living separately having
no concern to each other.
(iii) Since the complainant-victim suffered mentally as well as
physically, therefore it is justifiable to compensate her in terms of
money.
(iv) Three out of four convicts, namely, Basaruddin Khan, Jahada
Bibi and Alimuddin Khan are old aged persons.
(v) In lieu of sentences awarded to the accused to go in jail for two
years and six months for commission of the offences punishable
under Section 498 of IPC and Section 3 of Dowry Prohibition
Act respectively, it would be proper to release them under
Section 4 of the Probation of Offenders Act to maintain good
behaviour, as they are facing the rigor of litigation since 2006.
48. In the present case, this Court finds that the learned trial court had
awarded sentence of Rigorous Imprisonment for 06 months to each convict
for the offence under Section 3 of the Dowry Prohibition Act which is less
than the minimum sentence prescribed under Section 3 of the Dowry
Prohibition Act, 1961 and the learned appellate court further reduced their
sentences by passing an order to release them on probation of good conduct
under Section 4 of the Probation of Offenders Act, 1958. This Court further
finds that the learned appellate court did not even call for any report of the
Probation Officer before passing the order to release the convicts on probation
of good conduct under Section 4 of the Probation of Offenders Act, 1958. The
learned appellate court also did not record any reasons much less special and
adequate reasons in terms of proviso to Section 3 of Dowry Prohibition Act,
1961 as to why the court was inclined to impose a sentence of imprisonment
for a term of less than five years. Though this court has set-aside the
conviction under Section 3 of the Dowry Prohibition Act, 1961 and convicted
the convicts Section 4 of the Dowry Prohibition Act, 1961 but under Section 4
Dowry Prohibition Act, 1961 also special and adequate reasons in terms of
proviso to Section 4 of Dowry Prohibition Act, 1961 is to be recorded before
imposing a sentence of imprisonment for a term of less than six months.
49. This Court further finds that after surrender on 15.09.2007, Basiruddin
Khan, Jahada Bibi and Alimuddin Khan were released on bail on the same
day, but due to misuse of the bail granted to him, Alimuddin Khan had
remained in jail custody from 17.11.2008 to 20.11.2008 and Perwez Alam
(husband) had remained in jail custody from 03.03.2008 to 15.03.2008.
50. As per the trial court judgment passed on 24.02.2012, Petitioner No.1
was aged about 57 years, Petitioner No.2 was aged about 30 years, Petitioner
No.3 was aged about 52 years and Petitioner No.4 was aged about 69 years.
Accordingly, at present, Petitioner No.1 is aged about 69 years, Petitioner
No.2 is aged about 42 years, Petitioner No.3 is aged about 64 years and
Petitioner No.4 is aged about 81 years.
51. In the judgment passed in the case of Mohd. Hashim vs. State of U.P.
& Others reported in (2017) 2 SCC 198 the accused persons therein i.e.
Respondents 2 to 10 were convicted and sentenced, interalia, for the offences
punishable under Sections 498-A / Sections 3 and 4 of the Dowry Prohibition
Act, 1961. All the accused persons were convicted and sentenced to undergo
imprisonment under Section 323 IPC and Section 4 of Dowry Prohibition Act,
1961. Before the appellate court-Sessions Judge, the accused persons
confined their prayer seeking benefit under Section 4 of the Probation of
Offenders Act, 1958 and the learned appellate court extended the benefit
under Section 4 of the Probation of Offenders Act, 1958 to the accused
persons. The Hon'ble High Court concurred with the opinion expressed by the
learned Sessions Judge. The Hon'ble Supreme Court referring the provisions
under Section 3, 4 and 6 of the Probation of Offenders Act, 1958 observed
and held as under:
23. We have referred to the aforesaid authority to stress the point that the court
before exercising the power under Section 4 of the PO Act has to keep in view
the nature of offence and the conditions incorporated under Section 4 of the PO
Act. Be it stated in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of
Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208 : AIR 2000 SC 1677] it has
been held that Parliament has made it clear that only if the Court forms the
opinion that it is expedient to release the convict on probation for the good
conduct regard being had to the circumstances of the case and one of the
circumstances which cannot be sidelined in forming the said opinion is "the
nature of the offence". The Court has further opined that though the discretion
has been vested in the court to decide when and how the court should form such
opinion, yet the provision itself provides sufficient indication that releasing the
convicted person on probation of good conduct must appear to the Court to be
expedient. Explaining the word "expedient", the Court held thus: (SCC p. 86,
paras 9-10)
"9. ... The word "expedient" had been thoughtfully employed by
Parliament in the Section so as to mean it as "apt and suitable to the end
in view". In Black's Law Dictionary the word "expedient" is defined as
"suitable and appropriate for accomplishment of a specified object"
besides the other meaning referred to earlier. In State of
Gujarat v. Jamnadas G. Pabri [State of Gujarat v. Jamnadas G. Pabri,
(1975) 1 SCC 138 : AIR 1974 SC 2233] a two-Judge Bench of this Court
has considered the word "expedient". The learned Judges have observed
in para 21 thus: (SCC p. 145)
'21. ... Again, the word "expedient" used in this provision, has several
shades of meaning. In one dictionary sense, "expedient" (adj.) means
"apt and suitable to the end in view", "practical and efficient";
"politic"; "profitable"; "advisable", "fit, proper and suitable to the
circumstances of the case". In another shade, it means a device
"characterised by mere utility rather than principle, conducive to special
advantage rather than to what is universally right" (see Webster's New
International Dictionary)'.
10. It was then held that the court must construe the said word in keeping
with the context and object of the provision in its widest amplitude. Here
the word "expedient" is used in Section 4 of the PO Act in the context of
casting a duty on the court to take into account "the circumstances of the
case including the nature of the offence...". This means Section 4 can be
resorted to when the court considers the circumstances of the case,
particularly the nature of the offence, and the court forms its opinion that
it is suitable and appropriate for accomplishing a specified object that
the offender can be released on probation of good conduct."
24. We have highlighted these aspects for the guidance of the appellate court as
it has exercised the jurisdiction in a perfunctory manner and we are obligated to
say that the High Court should have been well advised to rectify the error.
25. At this juncture, the learned counsel for the respondents would submit that
no arguments on merits were advanced before the appellate court except seeking
release under the PO Act. We have made it clear that there is no minimum
sentence, and hence, the provisions of the PO Act would apply. We have also
opined that the court has to be guided by the provisions of the PO Act and the
precedents of this Court. Regard being had to the facts and circumstances in
entirety, we are also inclined to accept the submission of the learned counsel for
the respondents that it will be open for them to raise all points before the
appellate court on merits including seeking release under the PO Act."
52. It has been held by the Hon'ble Supreme Court that the word
"expedient" is used in Section 4 of the PO Act in the context of casting a duty
on the court to take into account "the circumstances of the case including the
nature of the offence...". This means Section 4 can be resorted to when the
court considers the circumstances of the case, particularly the nature of the
offence, and the court forms its opinion that it is suitable and appropriate for
accomplishing a specified object that the offender can be released on
probation of good conduct.
53. This Court finds that in the present case, the learned appellate court has
not exercised the powers under Section 4 of the Probation of Offenders Act,
1958 is accordance with the law as explained by the Hon'ble supreme court in
the aforesaid judgement and the appellate court has passed order contrary to
Section 4 of the Probation of Offenders Act, 1958 in a perfunctory manner
and contrary to the provision of law. Moreover, as explained above, the
appellate court has set aside the sentences of imprisonment and modified the
sentences by directing the convicts to furnish bonds instead of suspending the
sentence so as to call upon them to serve the sentence in case of any violation
which has led to a situation that neither any bond has been furnished nor there
is any scope to send them to serve the sentences of imprisonment.
54. Thus, the Appellate Court had no power to set aside the sentence of
imprisonment and replace it by giving benefits under Section 4 of the
Probation of Offenders Act instead of suspending the sentence. It is also
held that the learned appellate court has failed to exercise the powers
under Section 4 of the Probation of Offenders Act, 1958 in accordance
with law resulting in miscarriage of justice. The aforesaid fact and
circumstances call for interference with the appellate court's order of
modification of sentence in exercise of revisional jurisdiction. The point
in paragraph 19 above is answered accordingly.
55. Considering the entire facts and circumstances of the case, the sentence
part of the judgment dated 27.07.2017 passed by the learned appellate court in
Criminal Appeal No.18 of 2012 by which the sentences of the convicts
awarded by the learned trial court have been set-aside and replaced by
directing the convicts to furnish bonds under Section 4 of Probation of
Offenders Act, 1958 is hereby set aside and the case is remitted to the learned
appellate court for passing appropriate order on the point of sentences of the
convicts in accordance with law, after hearing the parties. Further this Court
in aforesaid paragraphs has already set-aside the conviction under Section 3
of the Dowry Prohibition Act, 1961 and instead convicted the accused under
Section 4 of Dowry Prohibition Act, 1961 apart from sustaining the
conviction under Section 498A IPC. The needful be done within a period of 3
months from the date of communication of this order.
56. Both parties shall appear before the learned appellate court on
18.03.2024.
57. With the aforesaid findings, observations and directions, both criminal
revision applications are disposed of.
58. Pending interlocutory application, if any, is closed.
59. Let the lower court records be sent back immediately to the court
concerned.
60. Let a copy of this Judgment be communicated to the learned courts
below through FAX/E-mail.
(Anubha Rawat Choudhary, J.)
Mukul
AFR/-
