Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.343 of 2013 ====================================================== 1. Sanjay Kumar, Son of Nand Kishore Prasad & 2. Dayamanti Devi @ Devanti Devi, wife of Nand Kishore Prasad, Both resident of Mohalla-Chailutal, P.S.Alamganj, District-Patna. Versus .... .... Petitioner/s The State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/S. Arvind Kumar Mouar, Harish Kumar, Raj Krishna Jha, Advocates For the Respondent/s : Mr. Sharda Kumari, APP. For the Opposite Party No.2: Mr. Madanjeet Kumar, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 8 11-07-2013 Heard learned counsel for the petitioners, learned counsel for the victim as well as learned Additional P.P. 2. Petitioners, namely, Sanjay Kumar as well as Dayamanti Devi @ Devanti Devi who have been found guilty for an offence punishable under Section 498A of the IPC out of whom Sanjay Kumar was directed to undergo rigorous imprisonment for two years while Dayamanti Devi @ Devanti Devi was directed to
Legal Reasoning
undergo rigorous imprisonment for one year by Sri Sobha Kant Mishra, Judicial Magistrate, Ist Class, Patna vide judgment dated 14.09.2005 passed in Complaint Case No.C 997 of 1998/Trial No.100 of 2005(Diwali Prasad Vrs. Sanjay Kumar and others) which has been found confirmed vide judgment dated 31.07.2012 passed by Additional Sessions Judge-II, Patna in Cr.Appeal Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 2 No.161 of 2005/76 of 2012 and during course thereof maintained the sentence inflicted against petitioner Sanjay Kumar while reduced it to rigorous imprisonment for six months with regard to petitioner Dayamanti Devi @ Devanti Devi, have preferred instant revision. 3. Many fold argument has been raised on behalf of the petitioners while assailing the successive judgments of conviction and sentence rendered by the courts below. While assailing the successive judgments, it has been submitted that the learned courts below have failed to scrutinize the evidence in its right perspective. It has also been submitted that the prosecution suffers from vagueness, impropriety. Because of the fact that Anju Kumari(P.W.5) herself was not willing to stay at her Sasural and had deserted her husband Sanjay Kumar, on account thereof a suit for divorce was instituted by Sanjay Kumar bearing Matrimonial Case No.86 of 1998 wherein she was noticed and then only in retaliation levelling false and frivolous allegations, a complaint was filed on 17.07.1998 by the father of Anju Kumari. Therefore, whatever allegation has been levelled, that should be taken into account in the background of continuity of Matrimonial Case No.86 of 1998 since before institution of the complaint case. 4. From the cross-examination of P.W.5, which has Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 3 totally been ignored by the successive courts, it is apparent that on account of her staying at her Maika just for 15 days stay at her Sasural after marriage completely erased the allegation whatsoever been alleged against the petitioners. Even considering the case of the prosecution at least at any occasion during the intervening period, it was expected at the hands of prosecution to say about incidence of overt-act against the Anju Kumari but surprisingly enough, none of the P.Ws. including Anju Kumari had divulged. Having omnibus allegations against the accused persons resulted acquittal of other co-accused by the Appellate Court but unfortunately the same set of evidence did not inspire the learned Appellate Court while taking into account the case of petitioners. After going through the judgment of the Appellate Court, it is apparent that instead of scrutinizing the evidence so far these two petitioners are concerned, the learned Appellate Court had seen under emotion and on account thereof, the judgment so far these two petitioners are concerned is suffering from own illusion as well as hypothesis of the learned Appellate Court without having any support from any corner. Also relied upon PLJR 2010(4) page 15 in support of his contention that on vague allegation, the prosecution under Section 498A of the IPC will not survive. Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 4 5. At the other hand, the learned lawyer for the victim along with learned Additional P.P. have supported the concurrent finding of fact recorded by successive courts and submitted that during course of revisional jurisdiction, the same cannot be interfered with unless and until there happens to be manifest error visible therefrom. Also submitted that the courts below have rightly concluded after scrutinizing the evidence having been adduced on behalf of the respective parties. Thus, the findings so recorded are fit to be confirmed. 6. It has also been submitted that because of the fact that all the accused persons have conspired to squeeze the money illegally and for the procurement of the same, there was continuous torture at their hands. Therefore, specific allegation was not at all warranted. It has further been submitted that the evidence of the witnesses is to be taken into account in its entirety. When the evidence in the background of the aforesaid parameter is analyzed, it is apparent that prosecution had succeeded in proving its case. Apart from this, it has also been submitted that husband has got extra ordinary status and so he is accountable for any sort of maltreatment having given to his wife at her Sasural and in the aforesaid background recording of the successive courts Sanjay Kumar guilty for the offence punishable under Section 498A of Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 5 the IPC is found to be justified from all corner. 7. Heard the parties and perused the record. It is settled principle of law that the scope of revisional jurisdiction against the concurrent finding happens to be very limited and for that it has to be seen whether there happens to be glaring defect visualizing from the record itself. For that purpose, when the record has been gone through, it is apparent that some sort of glaring defect are persisting on the record which are found to be sufficient in getting the successive finding undone. 8. From perusal of the charge, it is apparent that petitioners including other co-accused(since acquitted) were charged for an offence committed in between 11th June, 1996 till now that means to say till the date of framing of charge having committed at the house of the complainant as well as at the Sasural of Anju Devi and the status of the accused were identified as husband and relatives of husband of Anju Devi on being treated the Anju Devi with cruelty. At the other hand, when the statement of the accused has been gone through, it is apparent that the same has been recorded in such casual manner that it wings the whole effort of the prosecution. For better appreciation, the questionnaire which were put before petitioner Sanjay Kumar and Devanti Devi @ Devanti Devi are quoted below in verbatim. Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 6 Examination of Sanjay Kumar iz”u %& vkids fo:) lk{; gS fd vki ifjoknh dh iq=h Jherh vatq nsoh dks ngst ds fy, izrkfM+r djrs gSa A bl lEcU/k esa D;k dguk gS ? mRrj %& th ugha A iz”u %& vkidks vius lQkbZ esa D;k dguk gS ? mRrj %& eSa funksZ’k gwWa A lQkbZ lk{; nwWaxk A Examination of Devanti Devi iz”u %& vkids fo:) lk{; gS fd vki ifjoknh dh iq=h Jherh vatq nsoh dks ngst ds fy, izrkfM+r djrs gSa A bl lEcU/k esa vkidks D;k dguk gS ? mRrj %& th ugha A iz’u %& vki dks vius lQkbZ esa D;k dguk pkgrs gSa ? mRrj %& eSa funksZ’k gwWa A lQkbZ lk{; ckn esa nwWxkA 9. As per Section 313 of the Cr.P.C., statement of accused is to be recorded by the court. It happens to be the only one occasion to the accused to explain the events against the incriminating materials which were brought against him during course of trial. That means to say whatever incriminating materials have been adduced, those are to be confronted. In case, no such material has been confronted before the accused, then in that event, those incriminating materials cannot be used against the accused subsequently. For better appreciation Sub-clause-1 of Section 313 of the Cr.P.C. is incorporated below:- 313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court— (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary ; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 7 defence, question him generally on the case : Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). 10. Now coming to the other aspects connected therewith, the necessary ingredients for application of Section 498A of the IPC happens to be cruelty in terms of Sub-clause A and B is meted out by the victim at the hands of husband or being relative of the husband. From the questionnaire of the statement as referred above, it is apparent that the status of the petitioners have not been identified. Once the court had failed on this score then certainly they are not to be dragged as per requirement of Section 498A of the IPC. 11. Giving my anxious consideration towards the successive judgments on this very score, it is apparent that neither such plea was raised on behalf of the petitioners nor the courts had considered the aforesaid vital lacuna. In the aforesaid background as well as findings serious lapses on account of utter violation of Section-1 of Section 313 of the Cr.P.C. in consonance with the evidence as well as charge, it looks unsafe to allow the successive judgments to survive. Therefore, successive judgments are set aside. Revision is allowed. Both the petitioners are under custody. 12. Hence, are directed to be released forthwith, if not Patna High Court CR. REV. No.343 of 2013 (8) dt.11-07-2013 8 wanted in any other case. (Aditya Kumar Trivedi, J) B.Kr./-