Rajpal And Others ... vs State Of Uttarakhand
2023 Latest Caselaw 1249 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Revision No. 18 of 2009


Rajpal And Others                                    ....Revisionists

                                   Vs.

State of Uttarakhand                                 ..... Respondent



Mr. S.R.S. Gill, learned Amicus Curiae.
Mr. Lalit Miglani, A.G.A.. for the State of Uttarakhand.



                             JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant revision is preferred against the

following:-

(A) Judgment and order dated

04.08.2006, passed in Criminal Case No.836 of

2004, State Vs. Rajpal and Others, by the court

of Civil Judge (Junior Division)/Judicial

Magistrate, Rishikesh, District-Dehradun. By it,

the revisionists have been convicted under

Section 498-A IPC and Section ¾ of the Dowry

Prohibition Act, 1961 ("the Act"). They have been

sentenced as hereunder:-

(i) Revisionist Aman Panchal has been

sentenced under Section 498 A IPC

with two years' imprisonment and

fine of Rs. 2000. He has further

been sentenced under Section ¾ of

the Act with one year imprisonment

and a fine of Rs. 1000.

(ii) Revisionist Rajpal has been

sentenced under Section 498 A IPC

with one year imprisonment and

fine of Rs. 1000. He has further

been sentenced under Section ¾ of

the Act with 6 months'

imprisonment and a fine of Rs. 500.

(iii) Revisionist Smt. Nirmal has been

sentenced under Section 498 A IPC

with six months' imprisonment and

fine of Rs. 500. She has further

been sentenced under Section ¾ of

the Act with six months'

imprisonment and a fine of Rs. 500.

(B) Judgement and order dated

27.01.2009, passed in Criminal Appeal No.38 of

2006, Rajpal and Others Vs. State of

Uttarakhand, by the court of Additional District

and Sessions Judge/IV F.T.C. Dehradun ("the

appeal"). By it, the appeal has been dismissed

and the conviction and sentence of the

revisionists has been upheld.

2. Heard learned Amicus Curiae and learned

State Counsel and perused the record.

3. Instant revision was once dismissed by this

Court on 12.04.2019, but the order dated 12.04.2019

was challenged by the revisionists before the Hon'ble

Supreme Court in Criminal Appeal No.512 of 2020,

Rajpal and Others Vs. State of Uttarakhand ("the

Criminal Appeal"). The Criminal Appeal was allowed by

the Hon'ble Supreme Court on 07.08.2020 and the

matter was remanded to this Court for fresh hearing.

The order dated 12.04.2019, passed by this Court was

set aside.

4. On 20.06.2022, the Court requested Mr.

S.R.S. Gill, Advocate, to assist this Court in the matter,

as the revisionists went unrepresented.

5. Once argument was heard in this revision

and judgment reserved. But, thereafter, the Court noted

that in view of the earlier proceedings when the revision

was decided in the absence of the revisionists, it would

be expedient in the interest of justice that the presence

of the revisionists be secured. Thereafter, processes were

issued against the revisionists and they were arrested

and remanded to judicial custody on 26.03.2023.

6. Facts necessary to appreciate the

controversy, briefly stated, are as follows: the informant

and the revisionist Aman Panchal were married on

17.02.2002. But, according to the FIR, after marriage,

the informant was harassed, tortured, beaten up on

multiple occasions for and in connection with the

demand of dowry. According to the FIR, in fact, after

great harassment, the informant, along with her

husband, the revisionist Aman Panchal, were forced to

stay separate in a rented accommodation in Delhi. But,

on 03.05.2004, the revisionist Aman Panchal left the

informant all alone in her house and did not return. The

informant lodged a missing report at a Police Station

and, subsequently, on 15.05.2004, she returned to her

father's house after informing the revisionist Rajpal (he

is father-in-law of the informant; the revisionist Smt.

Nirmal is mother-in-law of the informant). The FIR

further states that on 06.06.2004, the revisionists and

other family members came to the house of the father of

the informant and abused, assaulted and attacked them.

It is, thereafter, the FIR in the instant case was lodged

on 16.06.2004. Based on it, Case Crime No. 202 of

2004, under Sections 498A, 452, 323, 504 and 506 IPC

and Section ¾ of the Act was lodged and the

investigation was carried out. During investigation, the

Investigating Officer prepared the site plan and after

completing investigation, submitted a chargesheet

against the revisionist and 3 others.

7. In order to prove its case, the prosecution

examined six witnesses, namely, PW1 Smt. Rashmi, PW2

Smt. Santosh, PW3 Ramlal, PW4 Gokul Chand Madan,

PW5, Rampal Singh, PW6 SI A.K. Pandey.

8. After the prosecution evidence, the

revisionists were examined under Section 313 of the

Code of Criminal Procedure, 1973 ("the Code"), and by

the impugned judgment and order dated 04.08.2006,

they were convicted and sentenced, as stated

hereinbefore. Aggrieved by it, the appeal was preferred

by the revisionists, which was also dismissed. Hence the

revision.

9. Learned Amicus Curiae would submit that,

in fact, the statement under Section 313 of the Code, as

recorded in the instant matter, is defective. But, he

would submit that since the matter is pending for quite

a long therefore further remand of the matter, for

recording statement of the revisionists under Section

313 of the Code, would take much time, as also it may

not affect much of the merits. He restricts his

submission to the quantum of sentence only. According

to the learned Amicus Curiae, the revisionist Rajpal is of

73 years of age and the revisionist Smt. Nirmal is of 69

years of age. The factual matrix, according to learned

Amicus Curiae, may also be helpful in determining an

adequate sentence in the matter because even according

to the prosecution, after marriage of the revisionist

Aman Panchal with the informant Smt. Rashmi, the

informant and the revisionist Aman Panchal stayed

separate from their family in a rented accommodation in

Delhi. He would submit that the circumstances would be

well visualised that the revisionist Aman Panchal had to

leave the company of his wife. A missing report was

lodged against him. It is submitted that much agony has

already been undergone by the revisionists. Now, the

interest of justice does not warrant that they may be

kept behind the bars anymore. Therefore, the sentence

may be reduced to the period, which has already been

undergone, at least in so far as the revisionists Rajpal

and Smt. Nirmal is concerned. Insofar as the revisionist

Aman Panchal is concerned, he was 36 years old when

the statements under Section 313 of the Code were

recorded in the year 2006. In his case also, it is argued

that the sentence is much harsh. It deserves to be

reduced significantly.

10. On the other hand, learned State Counsel

would submit that insofar as the revisionists Rajpal and

Smt. Nirmal is concerned, their sentence may be

reduced, in view of their old age. But, he would submit

that insofar as the revisionist Aman Panchal is

concerned, he does not require any leniency. The offence

against him has been proved. It is a case of dowry

demand and harassment. It is an offence against the

society.

11. In order to arrive at a just sentence, it

would be apt to see as to what the witnesses have

stated.

12. PW1, in the instant case, is Smt. Rashmi,

the informant. She has stated that she and the

revisionist Aman Panchal, were married on 17.02.2002.

From the date of marriage itself, the demand of dowry

was made, which continued on multiple occasions; she

was beaten up; Rupees 5 Lakhs were demanded for

purchase of a house, and, finally, on 03.09.2003, she

was forced to live with the revisionist Aman Panchal in a

rented accommodation in Delhi. Her certificates were

also kept by the revisionists and others. She has also

stated that on 26.09.2003, the revisionist Aman

Panchal tried to press against her neck; he poured

Kerosene oil on her on 23.10.2003; he had beaten up

her on 18.04.2004 and finally on 03.05.2004, the

revisionist Aman Panchal left her company. She had to

lodge a missing report at a police station. And finally,

finding herself helpless she left for her father's house on

15.05.2004, after informing the other revisionists.

According to her, on 06.06.2004, at about 11:30 in the

morning, the revisionists, along with other family

members visited her father's house, abused, attacked

and assaulted them, of which, finally a report was given

on 16.06.2004.

13. PW2 Smt. Santosh and PW3, Shri Ramlal,

are the mother and the father of the informant,

respectively. They have grossly supported the statement

of PW1, Rashmi. Factually, they were not the eye-

witnesses to what had happened in the in-laws house of

PW1, Rashmi.

14. PW4 Gokul Chand Madan is one of the

neighbourers of the PW3, Ramlal. He has stated that

PW3, Ramlal, had told him about the incident of

06.06.2004 and the demand of dowry by the revisionists

and others.

15. PW5, Rampal, has stated that in the year

2003, the revisionist Aman Panchal along with PW1

Rashmi were his tenant. He has witnessed their daily

quarrels; the revisionist Aman Panchal assaulted Smt.

Rashmi. Once he had pressed against her neck. When

she shouted, he went to rescue her. He has stated about

other incidents as well.

16. PW6 is the Investigating Officer. He is

conducted the investigation and proved the documents.

17. In the instant case, the examination of the

revisionists under Section 313 of the Code is quite brief.

PW1, Smt. Rashmi, has stated about the incident of

various things in her examination. But, a joint question

has been put to the revisionists that they, after the

marriage of PW1, Rashmi with the revisionist Aman

Panchal, on 17.02.2002 till 06.06.2004, demanded

dowry and harassed her physically and mentally and

demanded Rs. 5 Lakhs. The examination under Section

313 of the Code may not be said to be meeting all the

requirements of Section 313 of the Code.

18. In the case of Nar Singh Vs. State of

Haryana, 2015 (1) SCC 496, the Hon'ble Supreme Court

has laid down guidelines as to what would be the course

of action if examination under Section 313 of the Code

does not meet the requirement of law. The Hon'ble

Supreme Court observed as hereunder:-

"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer. 30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.

30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the

accused afresh and defence witness, if any, and dispose of the matter afresh.

30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused."

19. As stated, learned Amicus Curiae would

submit that, at this stage, the matter may not be

remitted for retrial, on account of long time already

spent in the matter and keeping in view the age of the

revisionists Rajpal and Smt. Nirmal.

20. In the case of Nar Singh (supra), this

situation has been envisaged by the Hon'ble Supreme

Court in Para 30.4. The revisionists have been in jail

from 23.03.2023. the duration is not big. But, it is

stated that 2 of the revisionists are of much advanced

stage, which is not disputed.

21. This Court is of the view that definitely the

interest of justice would be served if the revision is

decided on its own merits now. Since learned Amicus

Curiae has restricted the submission to the quantum of

sentence, therefore, the Court proceeds further to

examine the adequacy of the sentence.

22. Sentencing is one of the most difficult tasks

in the criminal justice system. It depends on various

factors like, the offence, the offender, the genesis of the

offence, its impact on the society, its ramifications, age

of the offenders or the victim, etc.

23. It is a case of harassment and the demand

of dowry. Admittedly, no medical reports have been filed.

There have been allegations of marpeet. In the year

2006, the revisionist was examined under Section 313 of

the Code. On 24.01.2006, the revisionist Rajpal was of

56 years of age and Smt. Nirmal was of 52 years of age,

which means they are 73 and 69 years of age

respectively now.

24. Having considered, this Court is of the view

that keeping in view the age of the revisionists, the

nature of offence and other attending circumstances of

the case, the interest of justice would be served if the

revisionists Rajpal and Smt. Nirmal are sentenced to the

period, which they have already undergone.

25. Insofar as the revisionist Aman Panchal is

concerned, having considered the entirety of facts, this

Court is of the view that the interest of justice would be

served if his period of sentence under Section 498A IPC

is reduced to 3 months and under Section ¾ of the Act,

the period of sentence is reduced to 2 months. The fine

shall remain unaltered.

26. The conviction of the revisionists under

Section 498A IPC and Section ¾ of the Act is upheld.

27. The revisionists Rajpal and Smt. Nirmal are

sentenced under Section 498A IPC to the period of

imprisonment, which they have already undergone in

this case. Both the revisionists Rajpal and Smt. Nirmal

are sentenced to simple imprisonment for a period of one

month under Section 3/4 of the Act. The fine shall

remain unaltered.

28. The revisionist Aman Panchal is sentenced

under Section 498A IPC to imprisonment for a period of

3 months. He is sentenced under Section 3/4 of the Act

to imprisonment for a period of 2 months. The fine shall

remain unaltered.

29. The revisionists Rajpal, Smt. Nirmal and

Aman Panchal are in jail. Let the revisionists Rajpal and

Smt. Nirmal be set free forthwith, if not wanted in any

other case.

30. The revisionist Aman Panchal shall serve

out the remaining sentence, as indicated hereinabove.

31. The revision is partly allowed accordingly.

32. Let a copy of this judgment along with the

lower court record be forwarded to the court concerned

for compliance.

33. Let a copy of this judgment be forwarded to

the concerned jail also.

(Ravindra Maithani, J.) 04.05.2023 Ravi Bisht