Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.442 of 2013 ====================================================== 1. Kailash Chauhan S/O Ramabtar Chauhan R/O Village- Mehadipur, P.S.- Pakari Barawan, District- Nawada 2. Eadali Devi W/O Kailash Chauhan R/O Village- Mehadipur, P.S.- Pakari Barawan, District- Nawada 3. Suresh Chauhan @ Suresh @ Pappu Chauhan @ Pappu S/O Kailash Chauhan R/O Village- Mehadipur, P.S.- Pakari Barawan, District- Nawada 1. The State Of Bihar Versus .... .... Petitioner/s .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bharat Lal, Mr. Ram Naresh Singh, Advocates For the State : Mr. Ganesh Pd. Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 6 23-07-2013 Heard learned counsel for the petitioner as well as learned APP for the State. 2. Petitioners Kailash Chauhan, Eadali Devi and Suresh Chauhan @ Suresh @ Pappu Chauhan @ Pappu have preferred instant revision against judgment dated 20.09.2011 passed by SDJM, Sheikhpura in G.R. No. 344 of 2005/Trial No. 782/2011 holding them guilty for an offence punishable under Section 323/34 IPC whereunder each of them has been directed to undergo SI for six months as well as under Section 498A/34 whereunder each of them has been directed to undergo SI for two years as well as each of them also slapped with fine of Rs.2000/- in default thereof, to undergo SI for three months as well as judgment dated 16.03.2013 passed by Ad hoc Additional Sessions Judge, Sheikhpura in Cr.Appeal No. 93 of 2011/01/2012 dismissing the 2 appeal. 3. PW-1 Laxmi Devi @ Laxminia Devi filed a complaint petition bearing no. 182C/2005 which was sent to the concerned police station for registration and investigation and on account thereof, Ariari P.S. Case No. 83 of 2005 was registered and after completing investigation charge-sheet was submitted under Sections 498A, 504, 323, 379/34 of the IPC and 3, 4 of the Dowry Prohibition Act whereunder cognizance was also taken followed with conduction of trial meeting with ultimate result having brought under challenge. 4. As per narration of the prosecution case, it is evident that PW-1 had claimed her marriage with Suresh Chauhan @ Pappu in the year 1998 and “Duragman” was effected in the year 2002. During course of stay at her Sasural, the petitioners/accused began to coerce her to manage a motorcycle and for that, they began to torture her by way of abusing as well physically assaulting. They also attempted to do away her life. On so many occasions, her father tried to pacify the matter on the ground that he was not in a position to fulfil their demand, however, failed to persuade them. On the other hand, illegal activities of the accused persons continued and lastly, she was kicked out from the matrimonial home on 05.06.2005. 5. While challenging the order of conviction and sentence passed by the learned trial court and the judgment of 3 dismissal of appeal rendered by the appellate court, it has been submitted that the complainant herself is at fault and that is the reason behind that neither her father nor her mother has come forward to support her version. It has also been submitted that apart from non examination of independent witness, I.O too has not been examined. Whoever has been examined, PW-1 is complainant herself, PW-2 is brother and P.W.3 is maternal uncle. 6. On conjoint reading of their evidences, it is found that they are inconsistent on each and every point. The judgments of the successive courts below divulge that these things have not been taken into consideration. Had there been, neither the trial court would have recorded conviction nor the appellate court
Legal Reasoning
would have confirmed the finding recorded by the learned trial court. As such, it has been pleaded that because of the fact that there is non appraisal of the evidence of the PWs in its right perspective, hence, the revisional power should be exercised with the aid of Section 401 of the Cr.P.C. for the purpose of proper appraisal of the evidence. 7. On the other hand, learned APP counter-meeting with the submissions raised on behalf of petitioners submitted that the judgment is just, legal and proper and on account thereof is fit to be confirmed. It has also been submitted that during course of exercising of revisional power the concurrent finding should not be interfered with in routine manner. So far present case is 4 concerned, it is apparent from the successive judgments that the courts below have minutely gone through the same before holding the petitioners guilty. 8. So far scope of revisional power is concerned, it is needless to remind because of the fact that it has to satisfy regarding correctness, legality and propriety of any finding. An illegal finding does not become legal only because it is concurrent. 9. From the lower court record, it is evident that charge has been framed against the accused persons for the offences punishable under Sections 498A, 504, 323 of the IPC being husband as well as relative of husband. Petitioners have also been charged for offence punishable under Section ¾ of the Dowry Prohibition Act, although, both have got independent identity. The occurrence has been shown at Village-Jodhanbigha, P.S. Ariari, Distt-Sheikhpura and covered time in between 2002 to 05.06.2005. When the complaint has been gone through, it is apparent that Sasural of PW-1 lies at Village-Mehandipur P.S. Pakribarama, Distt-Nawada while Naihar of PW-1 lies at Village- Jodhanbigha, P.S. Ariari, Distt-Sheikhpura. From the complaint petition, it is apparent that one instance has been flashed by way of divulging the fact that while her husband has come to her Naihar for Rukhsati, at that time also he had demanded motorcycle. However, the same is not at all found supported by PW-1, herself during her examination-in-chief as well as by other two witnesses 5 PWs-2 and 3. 10. It is also evident from the charge that so far status of Suresh Chauhan is concerned, that is found to be identifiable to such extent but with regard to other two petitioners, namely, Kailash Chauhan, Eadali Devi, they have not been charged under Section 498A IPC in a capacity of being relative of the husband. In likewise manner, none of the ingredients of Section 504, 323 of the IPC has been alleged by these three witnesses along with complaint petition at Village-Jodhanbigha, P.S. Ariari, Distt- Sheikhpura i.e. Naihar of PW-1. When the statement recorded under Section 313 of the Cr.P.C. has been gone through, it is apparent that gross illegality has been committed by the court concerned. For better appreciation statement of all the three petitioners are independently incorporated hereinbelow. dSyk’k pkSgku iz0& D;k vki xokgu dk c;ku lquk gS? m0& th gkWaA iz0& vkids fo:) lk{; gS fd fnukad 2002 ls fnukad 05-06-2003 rd lkfdu tkS/ku foxgk Fkkuk vfj;kjh ftyk ’ks[kiqjk esa lqfpdk y{eh nsoh mQZ y{ehfu;k nsoh dks ngst ds fy, ’kkjhfjd ,oa ekafld :I ls izrkfMr fd;s] xkyh xykSt ,oa ekjihV fd;s D;k dguk gS? m0& th ughaA iz0& lQkbZ esa D;k dguk gS? m0& funksZ"k gSA iIiq pkSgku iz0& D;k vki xokgu dk c;ku lquk gS? m0& th gkWaA iz0& vkids fo:) lk{; gS fd fnukad 2002 ls fnukad 05-06-2003 rd lkfdu tkS/ku foxgk Fkkuk vfj;kjh ftyk ’ks[kiqjk esa lqfpdk y{eh nsoh mQZ y{ehfu;k nsoh dks ngst ds fy, ’kkjhfjd ,oa ekafld :I ls izrkfMr fd;s] xkyh xykSt ,oa ekjihV fd;s D;k dguk gS? m0& th ughaA iz0& lQkbZ esa D;k dguk gS? m0& funksZ"k gSA ,snyh nsoh 6 iz0& D;k vki xokgu dk c;ku lquk gS? m0& th gkWaA iz0& vkids fo:) lk{; gS fd fnukad 2002 ls fnukad 05-06-2003 rd lkfdu tkS/ku foxgk Fkkuk vfj;kjh ftyk ’ks[kiqjk esa lqfpdk y{eh nsoh mQZ y{ehfu;k nsoh dks ngst ds fy, ’kkjhfjd ,oa ekafld :I ls izrkfMr fd;s] xkyh xykSt ,oa ekjihV fd;s D;k dguk gS? m0& th ughaA iz0& lQkbZ esa D;k dguk gS? m0& funksZ"k gSA 11. Whatsoever being asserted or alleged against the petitioners are the occurrence having been committed at Village- Mehandipur P.S. Pakribarama, Distt-Nawada while charge as well as statement confined to Village-Jodhanbigha where no such kind of occurrence had ever taken place. The evidences of three witnesses have minutely been gone through to search out whether there is even remote chances justifying framing of charge for the occurrence having at at Village-Jodhanbigha as well as statement, surprisingly, the same is absolutely lacking. For better appreciation the examination-in-chief of PW-1, the complainant herself is narrated below:- She had stated that the instant case has been filed against Kailash Chauhan, Eadali Devi and Suresh Chauhan @ Suresh @ Pappu Chauhan @ Pappu. She was married with Suresh about nine years ago. She had gone to her Sasural after marriage. After staying there for 3-4 days, she returned back to her Maika and Duragman was effected after five years. All articles were given. When she had gone 2nd time, she found congenial atmosphere for 1-2 months. When she had gone 2nd gone time, they began to assault. They have also advanced demand of motorcycle because of the fact that no motorcycle was provided, hence she was kicked out after brutal assault and that also happens to be the deposition of two PWs- i.e., brother and maternal uncle. 7 12. Even taking into account the legal theme in worst case that the offence under Section 498(A) IPC happens to be continuing offence, that would not change the circumstances on account of persisting deficiencies. Because of the fact that gross error is visualizing from the lower court record, not only challenging the jurisdictional avenue rather with regard to framing of charge as well as during course of statement of accused. True it is, that the finding recorded by the competent court cannot be declared to be invalid on account of such lapses if taken independently but when all the lapses and illegality on the record is taken together, it looks difficult to accede with the concurrent finding of the courts below. 13. Consequent thereupon, the same are set aside. The revision petition is allowed. 14. Since all the three petitioners are in jail custody, they are directed to be released forthwith, if not wanted in any other case. (Aditya Kumar Trivedi, J) Patna High Court 23rd day of July 2013 Md. Perwez Alam/AFR