Kameshwar Dangi vs The State Of Jharkhand & Anr.

Heard learned counsel for the parties.

The present criminal revision is directed against the judgment dated 21.11.2016 passed by learned Additional Sessions Judge-III, Chatra in Criminal Appeal No. 38 of 2009, whereby and whereunder the appeal preferred by the petitioner has been allowed in part and the judgment of conviction and sentence of the petitioner under Section 498A of the I.P.C. was confirmed and the judgment of conviction and sentence of the petitioner under Section 494 of the I.P.C. was set aside. The petitioner was convicted by the learned trial court vide judgment of conviction and order of sentence dated 04.06.2009 passed by learned Sub Divisional Judicial Magistrate, Chatra in G.R. No. 54 of 2003 and held guilty for the offence under Sections 498A and 494 of the I.P.C. and sentenced to undergo R.I. of three years along with fine of Rs. 5,000/- for the offence punishable under Section 498A of the I.P.C. and R.I. of three years along with fine of Rs. 5,000/- for the offence punishable under Section 494 of the I.P.C. However, both the sentences were directed to run concurrently.

The factual matrix of the case giving rise to this revision is that informant Anita Devi was married to Kameshwar Dangi 10 years ago according to Hindu rites and rituals and after marriage, the informant went to her matrimonial home. Out of the wedlock, she was blessed with one male child, aged about 7 years and one female child aged about three years. It is alleged that from the last 2-3 years, her husband Kameshwar Dangi, Bhaisur Ruplal Dangi and Nandosi Jageshwar Dangi were demanding Rs. 10,000/- and a T.V. set. She expressed inability of her father to fulfill their demand. Thereafter, they started torturing her in various ways and drove her out of her matrimonial house. She came to her parental home and her father went to her in-laws and a panchayati was convened in the village, but her in-laws did not pay any heed to panchayati. Thereafter, she reported the matter to police.

Accordingly, Chatra (Sadar) P.S. Case No. 08 of 2003 dated 25.01.2003 was registered for the offence under Sections 498A, 494 & 34 of I.P.C.

After investigation, charge sheet was submitted against all the three accused persons named in the F.I.R. and accordingly, cognizance of the offence was taken against them. Thereafter, charge for the offence under Section 498A/34 of the I.P.C. has been framed against all the accused persons, whereas charge under Section 494 of the I.P.C. has been framed against the accused Kameshwar Dangi, to which they pleaded not guilty and claimed to be tried.

After conclusion of trial, accused Ruplal Dangi and Jageshwar Dangi were acquitted from the charges leveled against them and accordingly, they were acquitted. However, petitioner was held guilty for the offence under Sections 498A & 494 of the I.P.C. and sentenced, as stated above.

The judgment of conviction and order of sentence of petitioner was challenged in Criminal Appeal No. 38 of 2009 before the learned Additional Sessions Judge-III, Chatra, which was partly allowed vide judgment dated 21.11.2016, whereby the judgment of conviction and sentence of the petitioner under Section 498A of the I.P.C. was confirmed and the judgment of conviction and sentence of the petitioner under Section 494 of the I.P.C. was set aside, which has been assailed in this revision.

Learned counsel for the petitioner has argued that neither in the FIR nor in the evidence of victim any specific overt act has been attributed against the petitioner. There is no whisper that any illegal demand of money was ever made by the petitioner from the victim or her parents and she was tortured for its non-fulfillment. No specific date and time as to when the victim was ill-treated and tortured mentally or physically by the petitioner has been alleged by witnesses. The informant has projected a false and concocted story after ten years of marriage that there was demand of Rs. 10,000/-and a colour T.V., due to suspicion that her husband has kept another lady and also married with her. Petitioner was acquitted for the offence under Section 494 of the I.P.C. As such, the very genesis of occurrence and motive for lodging this case is falsified.

This is a burning case of misuse of provision of Section 498A of the I.P.C., wherein not only the husband but all family members have been roped with false allegations. The F.I.R. was lodged in the year 2003 and more than two decades have elapsed. The informant is living in her matrimonial home, but separately with her husband (petitioner). Both the children have also got married. Therefore, the impugned judgment of conviction under Section 498A of I.P.C. passed by the learned trial court and upheld by the appellate court is perverse. Hence, this revision may be allowed by setting aside the impugned judgments and orders passed by the learned trial court as well as appellate court.

On the other hand, learned Spl. Public Prosecutor assisted by learned counsel for the opposite party no. 2 have vehemently opposed the aforesaid contentions raised on behalf of the petitioner and submitted that the trial court has recorded the finding of guilt of the petitioner, who has subjected the informant / victim to cruelty and harassment by commuting physical assault and mental trauma and without any reason left her at her own destiny. The conviction and sentence of petitioner is justified under law and this revision has no merits and fit to be dismissed.

I have given anxious consideration to the rival contentions of the parties and also perused the impugned judgments and order along with other materials available on record.

Before imparting my verdict on merits, the provision of Section 498A is extracted as under:-

The ingredients for an offence to be made out under Section 498-A of I.P.C. require that there has to be cruelty inflicted against the victim, which either drives her to commit suicide or cause grave injury to herself or such conduct that would cause grave injury or danger to life, limb or health. The second part of this Section refers to harassment with a view to satisfy an unlawful demand for any property or valuable security raised by the husband or his relatives.

In the present case, no allegations, which would fulfill the requirement of the second part, are found. No specific date, time or manner of commission of offence has been mentioned, not only this “cruelty” as defined and explained in the two explanations, as discussed, appended under Section 498A of the I.P.C. has also not been clarified in the charge itself. The contents of FIR, as discussed above, also does not mention as to how and in what manner the victim informant was subjected to cruelty, rather she has given a general allegation after 10 years of marriage that petitioner and other accused persons demanded Rs. 10,000/- and a colour T.V. and on non-fulfillment of same, she was continuously being assaulted at her matrimonial home. Hence, she returned to parental home and thereafter her husband solemnized second marriage. Hence, she has lodged this case, as such, the very foundational fact for institution of this FIR i.e. likelihood of second marriage to be performed by husband” has been disbelieved by the appellate court on the basis of evidence adduced by the prosecution.

The gravamen of charge leveled against the petitioner and the factual aspects has not been proved by the prosecution by cogent and reliable evidence.

Considering the overall aspects of the case, the prosecution has failed to prove cruelty by the husband, therefore, in my considered view, the judgment of conviction and order of sentence awarded to the petitioner is perverse.

In view of aforesaid discussion and reasons, I find that both learned trial court as well as learned appellate court has committed serious error of law in appreciating the evidence available on record and passed the impugned judgment only influenced by their emotions. Therefore, I find legal substance in the points of argument raised on behalf of the petitioner and merits in this revision. Accordingly, the impugned judgment of conviction and order of sentence of the petitioner passed by the learned trial court and modified by the appellate court is hereby set aside and 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 along with trial court record be sent to the concerned trial court for information and needful.