Ashok Kumar Maity vs The State Of Jharkhand & Anr.

Heard learned counsel for the petitioner and learned A.P.P. for the State.

The instant criminal revision is directed against the judgment dated 29.06.2015 passed by learned Additional Sessions Judge-XII, Dhanbad in Criminal Appeal No. 74 of 2008, whereby and whereunder the appeal filed by the petitioner has been dismissed and thereby upheld the judgment of conviction and order of sentence dated 03.03.2008 passed by learned S.D.J.M., Dhanbad in G.R. No. 1324 of 2004, whereby the petitioner has been convicted for the offence under Section 498A of the I.P.C. and sentenced to undergo R.I. for two years along with fine of Rs. 2,000/- with default stipulation.

Factual matrix giving rise to this revision is that the informant gave a written application before the Police stating therein that on 31.07.2002, she was married with the petitioner at Dhanbad and on this occasion, Rs. 2 lakhs were also given to the groom side and thereafter, the informant went to her matrimonial house situated at Chakradharpur and after some days of marriage, the informant went to Kolkata, where her husband (present petitioner) was employed in a hotel. It is further alleged that since the very day of arrival of the informant at Kolkata, the behaviour of her husband was not good and her husband started to come house in drunken state and used to beat the informant. It is further alleged that on 26.01.2003, the husband of the informant has taken her to Digha along with his two friends, there also the informant was maltreated and assaulted by the accused husband. It is further alleged that after return from Digha, the husband accused continued his maltreatment. It is further alleged that her husband had extra marital relation with one Sutopa Pal. In the meantime, husband accused lost his job and thereafter, Panchayati took place to reconcile the strained relation between the spouses and it was resolved that the accused persons only agreed to keep the informant at Chakradharpur and thereafter, the informant went to her matrimonial house situated at Chakradharpur, where both mother-in-law and father-in-law also subjected the informant to cruelty in various ways including demand of Rs. 2 lakhs and her all ornaments were also taken away by accused mother-in-law. It is further alleged that after having telephonic information from the informant, her father visited the matrimonial house of informant on 09.05.2003 and from where, she was taken by her father to her parent’s house at Dhanbad after writing on blank paper that he was taking his daughter on his own and no ornament had been retained by the accused persons. Later on, father of the informant tried to reconcile the relation and he also visited Kolkata to meet husband accused, but of no use. It is further alleged that on 31.07.2003, informant received a legal notice sent by the husband accused, due to which, the informant became depressed. Thereafter, the informant filed a complaint case bearing C.P. No. 524 of 2004 in the court of learned C.J.M., Dhanbad and the same was sent to the concerned P.S. to lodge a case under Section 156(3) of the Cr.P.C. and accordingly, F.I.R. being Dhanbad (Seraidhella) P.S. Case No. 261 of 2004 was lodged.

After lodging the F.I.R., the police investigated the matter and submitted charge-sheet under Section 498A/120B/34 of the I.P.C. and Section ¾ of the Dowry Prohibition Act against the accused persons and accordingly, cognizance has been taken on 08.11.2004 by the learned C.J.M., Dhanbad. Thereafter, charges were framed for the offence under Sections 498A / 120B of the I.P.C. and Section 3 / 4 of the Dowry Prohibition Act against the accused persons, to which they pleaded not guilty and claimed to be tried.

In course of trial, the prosecution has examined altogether 07 witnesses namely, P.W.-1 : Tapan Kumar Nandi. P.W.-2 : Dilip Kumar Mandal. P.W.-3 : Pius Kausal. P.W.-4 : Adhir Chandra Mandal. P.W.-5 : Dr. B.P. Dey. P.W.-6 : Bijoya Kumar. P.W.-7 : Bipasa Dey (Informant).

Apart from oral testimony of prosecution witnesses, following documentary evidences have been adduced on behalf of prosecution:-Exhibit-1 : Inland letter. Exhibit-2 to 4 : Letters dated 29.01.2003, 31.03.2003 & 27.01.2002. Exhibit-5 to 5/4: Five signatures of informant on the written report.

On the other hand, the defence has examined two witnesses namely, D.W.-1 : Kanu Mandal. D.W.-2 : Ashok Kumar Maity (accused)

Apart from oral testimony of defence, following documentary evidences have been adduced on behalf of defence:-Exhibit-A – C/C of judgment dated 28.01.2006 passed by learned Principal Judge, Dhanbad in Title Matrimonial Suit No. 26 of 2005. Exhibit-B – C/C of order sheet dated 07.04.2005 passed by learned District & Sessions Judge, Singhbhum West in Matrimonial Suit No. 23 of 2003.

After conclusion of trial, the learned trial court has acquitted Motilal Maity (father-in-law) and Geeta Maity (mother-in-law) from the charges leveled against them, but petitioner was held guilty for the offence under Section 498A of the I.P.C. and sentenced, as stated above.

Thereafter, petitioner preferred Cr. Appeal No. 74 of 2008 before the learned Additional Sessions Judge-XIIth, Dhanbad, which was dismissed vide judgment dated 29.06.2015, which has been assailed in this revision.

Learned counsel for the petitioner has submitted that the petitioner being the husband of the informant has been falsely implicated in this case. The marriage was solemnized on 31.07.2002 and the informant has left her matrimonial home without rhyme and reason. The petitioner has tried his level best to keep his wife with full dignity and honour, but she was not ready to reside with him. It is further submitted that the petitioner has filed a matrimonial suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights at Family Court, Chaibasa on 28.01.2003, which was decreed in favour of the petitioner on 07.04.2005. It is further submitted after receipt of notice of the said matrimonial suit, the informant has filed a case under Section 498A of the I.P.C. However, the said matrimonial suit was decreed in favour of the petitioner. It is further submitted that the informant had resided in her matrimonial home for a short span of time and left her matrimonial home. The allegations of torture and demand are not appeared to be genuine and both the court below have committed perversity in appreciating the evidence properly. It is further submitted that both trial court as well as appellate court has failed to properly consider the fact that the informant of this case itself had filed a suit under Section 13(1)(b) of the Hindu Marriage Act for a decree of divorce and the said suit has been decreed on contest and the marriage between the petitioner and the informant are dissolved by a decree of divorce vide judgment and decree dated 28.01.2006. Therefore, the impugned judgment of conviction and sentence passed by the learned trial court and confirmed by the learned appellate court are liable to the set aside and this appeal may be allowed.

Learned APP on behalf of the State has contended that so far conviction and sentence awarded to the petitioner for the offence under Section 498A of the I.P.C. is concerned, there is no illegality or infirmity in the impugned concurrent findings of the learned trial court as well as by the appellate court.

I have gone through the record of the case and also perused the impugned judgment of conviction and order of sentence passed by the learned trial court as well as affirmed by the appellate court, from which, it transpired that in substance, the trial court has failed to properly appreciate the fact that the petitioner (husband) has himself filed a matrimonial suit under Section 9 of the Hindu Marriage Act for restitution of conjugal life, which was allowed, but the informant, inspite of obeying the decree passed by the learned Family Court, has filed a case under Section 498A of the I.P.C. and also filed a divorce case. It further appears that the prosecution has also not brought on record any medical evidence or proof of assault or any type of physical or mental cruelty in support of its case. It further appears that the divorce suit filed by the informant was decreed in favour of informant and their marriage was dissolved. It seems that it is a matrimonial discard between the parties since long. The prosecution has failed to prove the charges beyond all reasonable doubt.

In view of discussions and reasons, the impugned judgment of conviction and order of sentence dated 03.03.2008 and upheld by the learned appellate court vide judgment dated 29.06.2015 are hereby set aside and accordingly, the petitioner is acquitted from the charge levelled against him.

In the result, this revision is allowed.

Petitioner is on bail, as such, he shall be discharged from the liability of bail bond and sureties shall also be discharged.

Let a copy of this judgment be sent to the court concerned for information and needful.