Sanjay Kumar @ Rajesh Kumar vs The State Of Jharkhand & Anr.

Heard learned counsel for the parties.

Both the above criminal revisions are arising out of common order, hence are being heard together and disposed of by common order.

It has been informed that the opposite party No.3, Ram Sakhi Devi in Cr. Revision No.23 of 2017 has died during pendency of this revision. This revision, therefore, stands abated so far as opposite party No.3 is concerned. The names of above surviving opposite parties of Cr. Revision No.23 of 2017, namely, Sanjay Kumar @ Rajesh Kumar, Asha Devi and Binod Paswan have been renumbered and the revision is heard on behalf of the aforesaid alive opposite parties.

In both the revisions, the petitioners have challenged the legality, propriety and correctness of the conviction and sentence passed by learned Judicial Magistrate, 1^st Class, Jamshedpur dated 17.08.2011 in C/1 Case No.207 of 2008, wherein the petitioner of Cr. Revision No.1465 of 2016 and opposite party Nos.2-5 in Cr. Revision No.23 of 2017 were held guilty for the offence under section 498A of IPC and sections 3/4 of D.P. Act and sentenced to undergo R.I. for 3 years along with a fine of Rs.10,000/- for the offence under section 498A of IPC and R.I. for 2 years along with a fine of Rs.5,000/- each for the offence under sections 3/4 of D.P. Act with default stipulation. Both the sentences were directed to run concurrently.

The convicts preferred an appeal before the learned Sessions Judge vide Criminal Appeal No.159 of 2011, which was heard and decided by learned Additional Sessions Judge-II, Jamshedpur vide judgment dated 31.08.2016, whereby and whereunder the conviction and sentence of the appellant(petitioner) in Cr. Revision No.1465 of 2016 for the offence under section 498A of IPC was set aside and conviction and sentence for the offence under sections 3/4 of D.P. Act was upheld and confirmed. Other co-convicts/O.P. Nos.2 to 5 in Cr. Rev. No.23 of 2017 was acquitted from both the charges extending the benefit of doubts.

Instant criminal revision i.e. Cr. Revision No.1465 of 2016 is directed against the judgment dated 31.08.2016 passed by learned Additional Sessions Judge-II, Jamshedpur in Cr. Appeal No.159 of 2011, whereby and whereunder the petitioner(appellant) was acquitted from the offence under section 498A of IPC but conviction and sentence for the offence under section 3/4 of D.P. Act was upheld and confirmed.

Criminal Revision No.23 of 2017 has been filed by the complainant-cum-victim challenging the acquittal of co-convicts, namely, Ram Sakhi Devi (now deceased), Asha Devi and Binod Paswan under sectoni 498A of IPC and Sections 3/4 of D.P. Act and acquittal of Sanjay Kumar under section 498A of IPC by the learned appellate court.

Factual matrix giving rise to these revisions is that the complainant, Sushma Devi is well educated having M.A. degree and was married with Sanjay Kumar @ Rajesh Kumar on 12.03.2007 as per Hindu Rites and Customs. It is further alleged that prior to marriage, a ring ceremony (engagement) was organized at Jamshedpur. It is further alleged that as per demand of the accused persons, the father of the complainant, at the time of ring ceremony, presented Rs.2.50 lakhs to her husband and other co-accused persons, out of which Rs.50,000/- in cash and the remaining amount through two separate bank drafts of Rs.1 lakh each bearing Nos. 117593 and 117594 of SBI Chota Govindpur Branch. Apart from the above cash, jewelry both silver and gold as well as household articles and electronic items like refrigerator, washing machine, VCD, T.V., mixing grinder etc. worth Rs.3 lakhs were also presented. It is further alleged that at the time of reception and offering other religious rituals during marriage, huge amount was also incurred. After marriage, the complainant went to her matrimonial home but after few days staying at her matrimonial home, her husband and all the accused persons started showing their dissatisfaction about the cash and gifts presented at the time of marriage. Her husband also openly declared that he does not like the complainant taunting her for her black complexion. The husband and other in-laws also started demanding Rs.2 lakhs as additional dowry to bring from her father. The father of the complainant as well as his relatives came to the matrimonial house of the complainant to settle the matter amicably but her husband and sister-in-law, Asha Devi openly demanded Rs.2 lakhs as dowry, to which the father of the complainant expressed his inability to fulfill rather he gave Rs.50,000/- cash to the accused No.2, Ram Sakhi Devi (mother-in-law) but her father could not pay the rest amount of Rs.1.50 lakhs. Thereafter, the complainant was subjected to cruelty in various ways by supplying insufficient food and her other necessary requirements were stopped and the aforesaid situation reached at its extreme. On 15.04.2007, in the mid-night, the complainant was brutally assaulted by her husband, sister-in-law (nanad) Asha Devi and brother-in-law (nandoshi) Binod Paswan and the complainant was driven out from the matrimonial home. Hence, she took shelter at her parental house at Jamshedpur. It is further alleged that on the occasion of Dushara in the year, 2007, her husband and sister-in-law, Asha Devi and Binod Paswan (nandoshi) came to Jamshedpur and in presence of her parents, she was assaulted by her husband. It is further alleged that after several attempts made by her father and due to social pressure, the accused persons brought the complainant from Jamshedpur to her matrimonial home on 21.11.2007 with undertaking and assurance that they will not engage in scuffle, dispute or torture against the complainant in future but the accused persons continued physical assault and torture with the complainant and also conspired to take her life. Thereafter, the father of the complainant came to her matrimonial home and brought her back to Jamshedpur. It is further alleged that again the complainant’s father with a view to settle the dispute with the accused persons took a house on rent at Govindpur owned by one Shambhu Sharan Sharma on his own expenses for the purpose to reside both parties together and she also started residing with her husband but within two weeks, the complainant was again subjected to cruelty both physically and mental by her husband due to non-fulfillment of the rest of amount of Rs.1.50 lakhs and assaulted her on 03.01.2008 and went away with bag and baggage. It is also alleged that all the articles presented at the time of marriage have also been detained by the accused persons at her matrimonial home.

After conducting inquiry, the accused persons were summoned and appeared.

The acquisition of charges were read over and explained to the accused persons to which, they claimed to be tried.

In course of trial, no documentary evidence has been adduced by the prosecution. However, altogether 5 witnesses were examined by the prosecution, namely:-

C.W.1-Sushma Devi (complainant)

C.W.2-Dinanath Paswan

C.W.3-Shambhu Sharan Sharma

C.W.4- Rajesh Kumar

C.W.5-Janardan Singh

On the other hand, no oral evidence has been adduced by the defence. However, two documentary evidence i.e. Ext.A-Voter Card of Binod Ram and Ext.A/1- Voter card of Asha Devi were adduced by the defence.

The case of defence is denial from the occurrence and false implication due to marital dispute.

Learned trial court after scrutinizing the evidence convicted all the accused persons for the offence under section 498A of IPC and Sections 3/4 of D.P. Act as stated above.

Learned appellate court acquitted other three co-convicts, namely, Ram Sakhi Devi (now deceased), Asha Devi and Binod Paswan from both the charges i.e. under section 498A of IPC and Section 3/4 of D.P. Act and convicted and sentenced only to the present petitioner(husband) of Cr. Revision No.1465 of 2016 for the offence under sections 3/4 of D.P. Act and also acquitted him from the charge under section 498A of IPC.

Learned counsel for the petitioner in Cr. Revision No.1465 of 2016 assailing the impugned judgment passed by learned appellate court has submitted that although the learned appellate court has acquitted the petitioner from the charge under section 498A of IPC but wrongly held him guilty for the offence under sections 3/4 of D.P. Act without any evidence. No inventory or list as required under law has been prepared at the time of marriage and subsequent demand of Rs.2 lakhs is only a bald allegation. In the complaint petition itself, it is mentioned that out of additional demand of Rs.2 lakhs cash, Rs.50,000/- cash was paid to the mother-in-law of the complainant but contrary to this, learned appellate court has found that Rs.50,000/- was paid and received by the present petitioner without any cogent and reliable evidence, which is the basis for upholding the conviction under sections 3/4 of D.P. Act against the present petitioner. Learned appellate court has failed to consider the material contradictions and discrepancies in regard of demand of additional dowry and its payment and mode of payment to whom it was paid, has wrongly observed that Rs.50,000/- cash was paid to the present petitioner. Therefore, learned appellate court has committed serious illegality and arrived at erroneous findings, which is fit to be set aside and this revision may be allowed.

On the other hand, criminal revision No.23 of 2017 has been filed by the complainant challenging the acquittal of all accused persons, who were held guilty and sentenced by the learned trial court. It is submitted by learned counsel for the complainant that learned appellate court has committed serious illegality while acquitting the main accused (husband of the complainant) from the charge under section 498A of IPC on flimsy grounds and his own imagination without appreciating the evidence properly, discussed by the learned trial court and without meting out the reasons, which was recorded by learned trial court while convicting the accused persons including the husband for the offence under section 498A of IPC and sections 3/4 of D.P. Act. Therefore, judgment passed by learned appellate court is absolutely illegal, improper and based upon the conjecture and surmises, which is fit to be set aside and the judgment passed by learned trial court may be restored against the accused persons. Accordingly, revision filed by the petitioner, Sanjay Kumar @ Rajesh Kumar is liable to be dismissed and the revision preferred by the complainant is fit to be allowed.

On other hand, learned counsel for the State has controverted the aforesaid contentions raised on behalf of the petitioners in both revision petitions and submitted that there is no legal substance in the argument raised on behalf of both the petitioners and no merits in these revisions. Learned appellate court has very wisely and aptly apprised and appreciated the prosecution evidence and arrived at right conclusion about the guilt of the accused/petitioner. Hence, there is no reasonable ground to interfere with the impugned judgment. These revisions have no merits and are fit to be dismissed.

I have gone through the record of the case along with the impugned judgment passed by learned trial court as well as learned appellate court in the light of the contentions raised on behalf of both side.

The only point for determination in these revisions is that “as to whether the impugned judgment passed by learned appellate court in Cr. Appeal No.159 of 2013 suffers from illegality or infirmity calling for any interference in these revisions?”

The question involved in these revisions pertains to conviction by learned trial court and acquittal of some accused persons by learned appellate court and partially conviction of the petitioner (husband) alone for the offence under sections 3/4 of D.P. Act. Therefore, a brief resume of oral testimony of witnesses appears to be necessary.

C.W.1. Sushma Devi is the complainant-cum-Victim of the alleged offence. According to her evidence, she was married with Sanjay Kumar @ Rajesh Kumar on 12.03.2007 as per Hindu Rites and Customs and at the time of marriage, her father has given two separate demand drafts of Rs.1 lakh each and Rs.50,000/- cash to the accused persons and apart from which, other electronic items, jewelry and household articles worth Rs.3 lakhs were also presented. This witness further states that she went to her matrimonial home along with her aforesaid gift items, where she lived only for a week quite well. Thereafter, her husband, mother-in-law and sister-in-law started harassing and assaulting saying that she does not have a fair complexion and they also raised additional demand of Rs.2 lakhs as dowry. She informed to her father about the above incident, then her father along with other relatives arrived at her matrimonial home but the accused persons again raised above demand before him, to which he showed his inability to fulfill. Nevertheless, her father gave Rs.50,000/- cash to the accused persons but she was again being assaulted by her husband and other accused persons. On 15.04.2007, after giving physical assault to her by the accused persons, she was driven out from the matrimonial home, then she went to the house of her relative, thereafter to Jamshedpur. All the gifted articles presented at the time of marriage were snatched by the accused persons. She further states that her father conveyed a panchyati ,thereafter some good sense prevailed and on 21.11.2007, she further went to her matrimonial home but the accused persons again started demanding the rest amount of Rs.1.50 lakhs and due to non-fulfillment of which, she was being assaulted and tortured, thereafter she returned at her parental home on 06.12.2007. On 21.12.2007, her husband along with other co-accused persons came to Jamshedpur and his father booked a rented house and gave to her husband for residing wherein she was also subjected to physical assault by the accused persons reiterating their demand. Ultimately on 03.01.2008, the accused persons went away with bag and baggage assaulting this witness. Therefore, she was constrained to lodge this complaint case.

In her cross-examination, this witness admits that she has an MA in political science. She further admits that she was married with the accused, Rajesh Kumar @ Sanjay Kumar but her sister-in-law was already married long-long ago prior to her marriage and her sister-in-law is blessed with four children and her eldest daughter is about 15-16 years old. She does not know about the matrimonial house of her sister-in-law. She further admits that her father had come to her matrimonial home on 01.04.2007 and Rs.50,000/- cash was given to her husband in presence of her mother-in-law, sister-in-law and nandoshi. This fact is also mentioned in the complaint petition. She further admits that on 15.04.2007, after being assaulted, she came to her relative i.e. uncle and also went to police station, but she was advised to conciliate the matter with the accused persons, then she returned back to her parental home with her uncle. She further reiterates that her husband and other accused persons were frequently assaulting her, therefore she became ill and also got treatment at the instance of accused persons. Since, 06.12.2007, she has been residing at her parental home. She also admits that on 21.12.2007, her husband and other accused persons came to Jamshedpur and on 02.01.2008 in the mid-night, she was assaulted by them but she did not report the said occurrence at the police station. She has denied the suggestion that her husband has lodged a case under Section 9 of Restitution of Conjugal Rights and after receiving notice, she lodged this false case. She has also denied the suggestion of the defence that she wants to reside at her parental home along with her husband as gharjamai, which is not accepted by him, hence, she lodged this false case.

C.W.2-Dinanath Paswan is father of the complainant. He has also corroborated the case of the complainant regarding dowry and articles presented at the time of marriage including Rs.2.50 lakhs through cash and bank drafts. Just after one week of marriage, he received information from his daughter that her husband and other accused persons were harassing and abusing her and demanding Rs.2 lakhs as additional dowry. He has further stated that no direct demand has been made by any of the accused persons. Although, he admits that anyhow he has paid Rs.50,000/- cash but who among the accused persons has received the said cash amount is not mentioned in his evidence. He admits that on 15.04.2007, his daughter returned to Jamshedpur and on the occasion of Dushara, 2007, her husband, sister-in-law and nandoshi also arrived at Jamshedpur and started demanding Rs.1.50 lakhs and after scuffling with his daughter, they went away. On 20.11.2007, he again sent his daughter to her matrimonial home. He also tried to settle his son-in-law at Jamshedpur taking a house on rent but he did not stayed there.

In his cross-examination, he admits that on 01.04.2007, he along with his brother went to matrimonial home of his daughter where he gave Rs.50,000/- cash to the accused persons. His daughter is residing with him since 06.12.2007. He further admits that his son-in-law is engaged in supply of electronic goods and he also attempted to settle his son-in-law in Jamshedpur. He has denied the suggestion of defence that he wants to settle his son-in-law at Jamshedpur because his daughter does not want to live at matrimonial home. Therefore, this false case has been lodged. He also admits that his son-in-law has filed a case under section 9 of Restitution of Conjugal Rights and also filed a divorce case and his daughter has also filed a maintenance case, which is pending.

C.W.3-Shambhu Sharan Sharma is a land lord and his house was taken on rent by the father of the complainant for residential purpose of his daughter and son-in-law. According to his evidence, Sushma Devi and Sanjay Kumar lived as a tenant in his house since December, 2007 and the rent was being paid by Dinanath Paswan (C.W.2). He has also stated that for a few days, Sushma Devi peacefully resided with the accused persons but a demand of Rs.1.50 lakhs was again made by the accused persons in his presence and Sushma Devi was assaulted by her husband and other accused persons. Thereafter, in month of January, 2008, all the accused persons went away. He has also reiterated the aforesaid facts.

C.W.4-Rajesh Kumar has also stated that after dispute and scuffle regarding demand of dowry by the accused persons, he along with father of the complainant went to the house of the accused persons for pacifying the matter and in his presence also, Shusma Devi was assaulted by her husband, mother-in-law and nandoshi.

In his cross-examination, this witness admits that he is uncle of the complainant and he also went to police station for giving information about the above incident but he was advised to settle the dispute amicably.

In his further cross-examination, he reiterates that on 06.12.2007, the complainant, Sushma Devi was assaulted by the accused persons in his presence at her matrimonial home.

C.W.5-Janaradan Singh is a hearsay witness about the factual aspect of the case from the father of the complainant.

It appears from perusal of the judgment of trial court and also in view of the evidence of the witnesses examined in this case, it is crystal clear that after marriage of the complainant, she went to her matrimonial home but she was subjected to physical and mental cruelty at the hands of the accused persons due to non-fulfillment of additional demand of Rs.2 lakhs as dowry. It further appears that insistence of the learned appellate court upon lodging any case in respect of assault and torture earlier meted with the complainant or any documentary evidence of injury, is absolutely absurd and unwarranted in the facts and circumstances of the case. The complainant is a highly educated lady and she has stated with date of all the chronological events and the circumstances, wherein she was ill-treated and tortured at the hands of her husband. Therefore, the findings recorded by the learned appellate court appear to be beyond weight of evidence and unwarranted insistence upon lodging of previous case at the police station. In matrimonial dispute, it is always seen that the parents and other relatives seek amicable settlement and resolution of the dispute instead of prompt institution of the case.

In the instant case, the father and uncle of the complainant have specifically proved that the complainant was assaulted by her husband in their presence due to non-fulfillment of additional demand of dowry. The petitioner has already been held guilty for the offence under sections 3/4 of D.P. Act. Therefore, his acquittal for the offence under section 498A of IPC in spite of clinching evidence available on record as discussed by the learned trial court apparently suffers from serious error of law and non-consideration of evidence properly rather based on conjecture and surmises.

So far, Criminal Revision No.23 of 2017 preferred by the complainant against the acquittal of accused, Sanjay Kumar @ Rajesh Kumar, Ram Sakhi Devi (now deceased), Asha Devi(nanad) and Binod Paswan(nandoshi) is concerned, it is admitted fact that the mother-in-law of the complainant has already died and her sister-in-law, Asha Devi and nandoshi, Binod Paswan do not reside with the husband of the complainant. It is also admitted fact that since long-long ago, Asha Devi was married and at the time of alleged occurrence, her elder daughter was aged about 15 years. The complainant and other witnesses examined on her behalf have not been able to give satisfactory evidence as to what is the employment of nandoshi, Binod Paswan and where the nanad of the complainant, Asha Devi resides and also about their native place. Therefore, they appeared to have been roped in this case merely being relative of the husband of the complainant and there is no occasion for sister-in-law and her husband to ask any dowry from the complainant and there is no evidence at all that anything was paid to them as part of the dowry or they have been involved in assaulting the complainant or torturing her with cruelty. Therefore, acquittal of Asha Devi and her husband, Binod Paswan from the charges levelled against them by learned appellate court is absolutely justified under law and do not require any interference.

In view of the above discussion and reasons, conviction and sentence of the petitioner, Sanjay Kumar @ Rajesh Kumar for the offence under section 498A of IPC passed by learned trial court is restored and the judgment and order passed by learned appellate court in respect of petitioner, Sanjay Kumar @ Rajesh Kumar is hereby set aside to the extent of acquittal from the charge under section 498A of IPC.

Accordingly, Cr. Revision No.23 of 2017 is partly allowed and Cr. Revision No.1465 of 2016 is dismissed.

Pending I.A(s), if any, is also disposed of accordingly.

Let a copy of this order along with Trial Court Records be sent back to the court concerned for information and needful.

I take this opportunity to appreciate the assistance rendered by Mr. Salona Mittal, learned Amicus Curiae appearing on behalf of petitioner in Cr. Revision No.1465 of 2016 and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fee as per notification of High Court Legal Services Committee to Mr. Salona Mittal, learned Amicus Curiae within a period of four weeks from the date of receipt/production of a copy of this order.

Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee.