Suresh Kumar vs State (2023:Rj-Jd:26423)
2023 Latest Caselaw 6148 Raj

[2023:RJ-JD:26423]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Criminal Revision Petition No. 604/2020

Suresh Kumar S/o Mangi Lal, Aged About 43 Years, Sarthala,
Tehsil Badi Sadari, District Chittorgarh (Raj.).
                                                                      ----Petitioner
                                    Versus
1.       State, Through P.p.
2.       Laxmi Lal S/o Roop Lal, Kheta Kheda, Tehsil Vallabhnagar,
         Dist. Udaipur.
                                                                   ----Respondents


For Petitioner(s)          :    Mr. R.S. Mankad
For Respondent(s)          :    Mr. Mukhtiyar Khan, PP



                HON'BLE MR. JUSTICE FARJAND ALI

                                    ORDER

ORDER RESERVED ON                            :::                   21/07/2023
ORDER PRONOUNCED ON                          :::                   22/08/2023
BY THE COURT:-

1. The instant Criminal Revision Petition has been preferred by

the petitioner Suresh Kumar under Section 397/401 of the Cr.P.C.

against the judgment dated 13.07.2020 passed by the learned

Additional Sessions Judge (Women Atrocities Cases), Udaipur in

Criminal Appeal No.122/ 2017 whereby the learned Judge

dismissed the appeal filed against judgment of conviction dated

13.11.2017 passed by the learned Additional Chief Judicial

Magistrate, Kanod in Case No.139/2009 by which the accused

Suresh was convicted and sentenced as under:-

 Offence       Substantive                            Fine   and           default
 convicted     sentence                               sentence
 under Section





 [2023:RJ-JD:26423]                     (2 of 11)                         [CRLR-604/2020]


 498-A IPC             3 years' SI                       Fine of Rs.5,000/-and in
                                                         default of payment of fine to
                                                         further undergo 15 days SI
 494 IPC               4 years SI                        Fine of Rs.5,000/-and in
                                                         default of payment of fine to
                                                         further undergo 15 days SI

All the sentences were ordered to run concurrently.

2. Heard learned counsel for the parties. Perused the material

available on record and the judgment impugned.

3. Bereft of elaborate details the brief facts giving rise to the

instant revision petition are that an FIR (Ex.P/16) came to be

lodged on 12.05.2009 at the instance of one Lakshmi Lal P.W. 16

alleging inter alia that marriage of his daughter Shewta @ Heera

P.W. 1 was solemnized with the petitioner Suresh 10 years ago.

It is alleged in the report that for six months after the marriage,

everything was fine but subsequently his daughter was subjected

to cruelty by her husband and in laws in connection with demand

of dowry. It was alleged that on 11.05.2009 his daughter was

ousted from her matrimonial home that promoted him to lodge

the FIR on 12.05.2009. It has been further alleged that one

Sampat Paneri informed him that petitioner has solemnized

second marriage with Ms. Rekha Salvi but he was not having

knowledge regarding whereabouts of Ms. Rekha.

4. On the basis of the above information, police registered a

case No.39/2009 and investigation was commenced. Thereafter,

on the basis of collection of evidence, charge sheet for the offence

under Section 498A, 406, 494 and 323 of the IPC was filed in the

trial Court. The learned trial Judge framed the charges against the

petitioner and inlaws Mangilal, Phulibai, Kishan Lal and Laxmi Lal.

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It is reflecting that the accused Mangilal, Phulibai, Kishan Lal and

Laxmi Lal were exonerated by the Court below and only the

accused Suresh was tried and convicted.

5. Indisputably, the marriage of the petitioner got solemnized

with Smt. Shewta @ Hira P.W.1 10 years prior to lodging of the

FIR; she states that after her marriage she stayed at matrimonial

home for 2-4 years and spent marital life with full merth and

merriment and whereafter her husband and inlaws used to rebuke

her and she had been subjected to cruelty for want of dowry. She

further stated that after 3-4 years of her marriage; a demand of

Rs.25,000/- was raised by her inlaws. At one point of time her

mother in law put hot cooker on her hands. She further stated

that prior to few days of lodging of the FIR, she was ousted from

her matrimonial home. She further alleged that her husband had

re-married with another lady named Ms.Rekha and her husband

refused to stay with him. It has been further alleged that on one

occasion Rs.35000/- was further demanded as a dowry. She

admitted that she was living along with her husband since the

apportionment of the property was done between petitioner and

his brothers. She only heard about solemnization of re-marriage of

her husband from someone else; but had no personal knowledge

regarding fact of second marriage. She also admitted that until

she left her matrimonial home, all ornaments and valuable articles

were under her possession.

6. Smt. Dhapu P.W.2. the mother of the Smt. Shewta P.W. 1

stated that her daughter usually used to tell her regarding

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maltreatment meted out to her at her matrimonial home. She

stated that she heard about remarriage of the petitioner Suresh;

she admitted that after the marriage, initially everything was

cordial and spouses were living happily.

7. Mathura Lal P.W. 3 stated on oath that he is the brother of

Shewta @ Hira P.W. 1. He is a witness of hear-say evidence. He

did not verify the authenticity regarding the fact of remarriage of

the petitioner with Ms. Rekha.

8. P.W. 6 Bharat happens to be maternal uncle of the

Smt.Shewta @ Heera, who stated that the marriage of his niece

got solemnized with petitioner Suresh 20 years ago and admitted

that she lived in her matrimonial home for 6-7 years only. He

further stated that in the year 2019, he was told by P.W. 3

Mathura Lal regarding strife between the spouses and then he

came to know that petitioner has married with another lady. This

witness specifically admitted that he tried to meet the petitioner

but that could not had happened.

9. Ratan Lal, P.W. 7 is one of the relative of the bride

Smt.Shewta @ Heera, the gist of his evidence would be that he

knew the parties and attended their marriage and the Shewta

lived in her matrimonial home for about 5-7 years.

10. P.W. 12 Badri Lal is a near relative of Smt. Shewta. He did

not support the story of the prosecution.

11. P.W. 16 Mathura Lal has turned hostile and he did not

support the case of the prosecution.

[2023:RJ-JD:26423] (5 of 11) [CRLR-604/2020]

12. The first informant Laxmi Lal has been examined as P.W. 17.

It was deposed by him that marriage of his daughter got

solemnized with petitioner Suresh around 16-17 years prior to

lodging of the FIR and first six months of the marriage, everything

was fine between the spouses but later on dispute arose between

them with regard to demand of dowry. He further stated that his

daughter spent a good and considerable time at her matrimonial

home. It was further alleged by him that his daughter ousted from

her matrimonial home thereafter, the petitioner got married again

with someone.

13. A careful scrutiny of the evidence brought on record making

it manifestly clear that no evidence even for the name sake has

been brought on record in connection with solemnization of

second marriage of the petitioner with Ms.Rekha. The allegations

are based on hear-say evidence. Not a single witness has been

produced who can say that he/she ever saw the petitioner with

Ms. Rekha. Even no time, date, venue of second marriage has

been brought on record except a bald and hearsay evidence which

is not admissible under the law. It seems that the learned trial

Judge has convicted the petitioner for offence under Section 494

of the IPC on the terms that in another Criminal Misc. Case

No.62/2017 pertaining to maintenance proceedings; somewhere

in the order sheets of that Court it has been observed that in the

year 2009, the petitioner had married again with a lady named

Ms. Rekha. Neither proceedings of that Court has been tendered

into evidence nor any witness has been produced to prove the

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aforesaid content. To the utter dismay, it is not comprehensible as

to who was the lady Rekha, what was her father's name, what was

her caste or from which place she belongs too, and at which place

the marriage took place. It is the rule of criminal law that if a

charge is framed against the accused then a duty is caste upon

the prosecution to prove the case beyond every reasonable doubt.

Here in this case, leave aside the question of doubt, even the

initial burden has not been discharged.

14. After careful scrutiny of the evidence this Court is of the firm

opinion that the findings arrived at by the learned trial Court with

regard to conviction of petitioner under Section 494 IPC is per-se

illegal and is based on conjectures. Even the learned appellate

Court did not bother to go through the evidence in this regard and

maintained the conviction under Section 494 of the IPC, despite

that there is a dearth of evidence in this aspect. Thus, the finding

of guilt and passing judgment of conviction under Section 494 of

the IPC and affirmation by the appellate Court is hereby quashed

and set aside. The accused-petitioner is discharged from the

offence under Section 494 of the IPC.

15. As far as the question of conviction under Section 498 of the

IPC is concerned, some facts are not disputed viz., the marriage of

the petitioner got solemnized with Smt. Shewta @ Heera around

10 years prior to lodging of the FIR. It is also not disputed that at

the time of marriage, there was no pre-condition with regard to

any dowry articles. There is major contradiction with regard to the

fact that after how much time the dispute had arisen between the

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spouses. It is evident from the prosecution evidence that the

spouses lived a happy married life for a considerable long time;,

whereas some of them stated that the dispute between the

spouses arose after 2-3 years of marriage and in the opinion of

the viewed witnesses, everything was fine for 3-4 years and the

rift begun thereafter. There is major incongruity with regard to

this fact. Similarly, there are allegations with regard to demand of

dowry but no specific date, time, place or occasion has been

mentioned by any of the witnesses so as to prove the fact that

actually when the demand was raised or infact what was

demanded or if demanded then by whom. In this regard only

omnibus allegations have been levelled. The discrepancy with

regard to demand of dowry article can be observed easily and it

seems that the prosecution witnesses were not firm on their

allegations.

16. The word 'dowry' has not been defined in the Indian penal

Code and the connotation of it has to be understood from Section

2 of the Dowry Prohibition Act, 1961 which reads as under:-

Definition of 'dowry'. --In this Act, "dowry" means

any property or valuable security given or agreed

to be given either directly or indirectly--

(a) by one party to a marriage to the other party

to the marriage; or

(b) by the parent of either party to a marriage or

by any other person, to either party to the

marriage or to any other person,

[2023:RJ-JD:26423] (8 of 11) [CRLR-604/2020]

at or before or any time after the marriage in

connection with the marriage of the said parties,

but does not include dower or mahr in the case of

persons to whom the Muslim Personal Law

(Shariat) applies

17. From the perusal of the above it is discernible that there are

three occasions related to dowry:-

(i) the first occasion would be before the marriage

(ii) the next would be at the time of marriage and

(iii) the third which is at any time after the marriage.

It can be understood that the third occasion seems to be an

unending period. However, for making enunciation of law, the

Court of law is required to stuck to the use of words, which are

used by the Legislature. This means that giving or agreeing to

give anything or property on any of the above three stages should

have been in connection with the marriage of the parties. There

should be an inextricable nexus with the demand and the

marriage. Hence, the word 'dowry' used under Section 498A or

under Section 304B of the IPC would be any property or valuable

security given or agreed to be given in connection with the

marriage and nonelse. Since this case pertains to Section 498A

IPC only so I am confined to deal with the issue within the

precincts of allegations levelled and what is provided under

Section 498 of the IPC. Section 498A IPC reads as under:-

Section 498A in The Indian Penal Code

[2023:RJ-JD:26423] (9 of 11) [CRLR-604/2020]

[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 wilful 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.]

18. A plain reading of aforementioned penal provision coupled

with the facts of the case making it manifestly clear that the case

of the prosecution with regard to Clause (b) of 498 IPC is not

made out or proved, in view of the discrepancy or in light of

firmness of the allegations and the contradiction between the

prosecution witnesses.

19. Now coming to Clause (a) of Section 498A of the IPC. As

discussed in the preceding paras of this judgment that the cruelty

was not with regard to the second marriage since the charge

under Section 494 IPC has not been made out and it has also

been observed that no unlawful demand was made out. Yet the

[2023:RJ-JD:26423] (10 of 11) [CRLR-604/2020]

wilful conduct of the petitioner to cause danger to life, limb or

health (whether mental or physical) of the victim P.W. 1 can be

traced from the evidence brought on record. Whatever the reason

may be, but the fact remains that Ms. Shewta P.W. 1 was legally

wedded wife of the petitioner or either she ousted or left the

company of the petitioner at her own accord but it cannot be

denied that she had to face mental agony on account of the

conduct of the petitioner. Thus, after critical examination of the

evidence it is observed that petitioner is guilty of offence under

Section 498 of the IPC. Though, this Court has reservations over

some observations made by the trial Court and the court of Appeal

yet affirms the finding of guilt and judgment of conviction to the

extent of Section 498A IPC.

20. As far as the question of order of sentence is concerned, it

is manifest from the record that the petitioner has no criminal

antecedent; he is working in a private hospital; his parents are

dependent upon him; he is a low paid employee of a private

hospital. The facts of the present case are that his matrimony

broke in the year 2009 and for long 14 years he has to face the

rigor of trial thereafter the Courts of appeal and revision. Thus, in

the light of the judgments passed by the Hon'ble Supreme Court

in the cases of Haripada Das Vs. State of West Bangal

reported in (1998) 9 SCC 678 and Alister Anthony Pareira vs.

State of Maharashtra reported in 2012 2 SCC 648 considering

the facts and circumstances of the case, age of appellant, his

criminal antecedents, his status in the society and the fact that he

[2023:RJ-JD:26423] (11 of 11) [CRLR-604/2020]

faced financial hardship and had to go through mental agony, this

court deems it appropriate to reduce the sentence to the term of

imprisonment that the appellant has already undergone till date.

21. Accordingly, the instant Criminal Revision Petition is allowed

in part. The judgment of conviction dated 13.11.2017 passed by

the learned Additional Chief Judicial Magistrate, Kanod, District

Udaipur in Criminal Regular Case No.139/2009 as well as the

judgment of appeal dated 13.07.2020 passed by the learned

Additional Sessions Judge (Women Atrocities Cases), Udaipur in

Case No.122/2017 are affirmed but the quantum of sentence

awarded by the learned Trial Court is modified to the extent that

the sentence he has undergone till date would be sufficient and

justifiable to serve the ends of justice. The petitioner is on bail.

His bail bonds are discharged.

22. All pending applications, if any, are disposed of.

23. Record be sent back.

(FARJAND ALI),J 300-Mamta/-

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