Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.700 of 2013 ====================================================== 1. Kishori Prasad S/O Shiv Dayal Mahto Resident Of Village Dhanbigha, P.S. Warsaliganj, District Nawada. Versus .... .... Petitioner/s 1. The State Of Bihar. 2. Mahendra Prasad Mehta S/O Sri Sitaram Mahto Resident Of Village Dharamraichak, P.S. Lakhisarai, District Lakhisarai. .... .... Respondent/s ====================================================== Appearance : For the Petitioner : Mr. A.K. Thakur, Sr. Adv For the State : Mr. Nawal Kishore Prasad, APP For O.P. No.2 : Mr. Arun Prasad & Pramod Kumar, Advocates. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 5 09-10-2013 Petitioner Kishori Prasad who has been found guilty for an offence punishable under Sections 498A, 494 IPC, ¾ of Dowry Prohibition Act and sentenced to undergo S.I. for one year as well as slapped with fine of Rs. 2000/- under Section 498A, S.I. for two years as well as fine of Rs. 1000/- for an offence punishable under Sections 494 of the IPC, S.I. for four months as well as fine of Rs.1000/- for an offence punishable under Section- 3 of the Dowry Prohibition Act, S.I. for three months as well as fine of Rs.2000/- for an offence punishable under Section-4 of the Dowry Prohibition Act with a direction to run the sentences concurrently by Miss Sushma Kashyap, SDJM, Lakhisarai in Complaint Case No. 133 © of 2004 vide judgment dated 2 23.09.2011 as well as judgment of appeal dated 15.04.2013 passed by Additional Sessions Judge, Lakhisarai in Cr. Appeal No. 101/2011 dismissing the same has challenged the same by way of instant revision. 2. O.P. No.2 filed Complaint Petition No. 133 © of 2004 against eight accused persons whereunder place of occurrence has been shown as Sasural of Poonam Devi while date of occurrence has been shown as 20.04.2013 with an averment that his daughter Poonam Devi was married with Kishori Prasad son of Shiv Dayal Mahto Resident Of Village Dhanbigha, P.S. Warsaliganj, District Nawada on 23.06.2002 as per Hindu rites and rituals and Rukhsati was effected on 30.06.2002 and had detailed the item which were given as gift to the accused Kishori Prasad. Having stayed for considerable time his daughter faced with cruelty and torture at the hands of accused persons to facilitate procurement of Rs. 40,000/-, a fridge and solar light whereupon he was informed. He rushed to the place and after some persuasive talks, he had paid the amount as detailed thereunder stage by stage. Even then, the persistent demand
Legal Reasoning
continued and in the aforesaid background his daughter was brutally assaulted even in his presence. On 08.05.2003, his son-in- law left his daughter at his place. Then the knavishness of accused 3 Kishori Prasad has been exposed by stating that accused had earlier married with Prabhawati Kumari who was deserted in similar way. He further asserted that the letter addressed by Kishori Prasad to his daughter did speak a lot with regard to criminal intention of Kishori Prasad. 3. Accordingly, the learned CJM transferred the Complaint under Section 192 of the Cr.P.C. for holding an enquiry under Section 202 of the Cr.P.C. and vide order dated 10.07.2004, Kishori Prasad, Anil Mahto, Kaushal Mahto, wife of Anil Mahto, Shiv Dayal Mahto, wife of Shiv Dayal Mahto, Sunita Devi, Surendra Prasad Kushwaha were summoned to face trial for an offence punishable under Sections 498A, 406 of the IPC and ¾ of the Dowry Prohibition Act. After having the witnesses examined before charge, charge was framed against all the accused for an offence punishable under Sections 498A, ¾ of the Dowry Prohibition Act against the accused Kishori Prasad under Section 494 of the IPC and accordingly witnesses were cross-examined after charge and then thereafter met with ultimate result, subject matter of instant revision. 4. Basically two grounds have been raised on behalf of petitioner while assailing successive judgments. The first one is with regard to jurisdiction. It has been submitted that from the 4 Complaint Petition itself, it is apparent that the place of occurrence is Sasural of Poonam Devi which admittedly lies at Village Dhanbigha, P.S. Warsaliganj, District Nawada while complaint has been filed at Lakhisarai. From the narration of the complaint petition as well as from the evidence of the witnesses, it is apparent that the occurrence as alleged had never been committed in its continuity nor any kind of offence was committed by the accused persons at the place of complainant lying at village- Dharamraichak. Accordingly, the whole prosecution has gone without jurisdiction. Consequent thereupon, the findings of the trial court as well as appellate court appeared to be unsustainable. 5. It has also been submitted that no offence under Section 494 of the IPC is found to be substantiated because of the fact that from the charge as well as from the statement it is not at all being disclosed that with whom the petitioner had remarried. The prosecution also failed to place the relevant material with regard to the rituals mandated under personal law wherever performed. Unless and until Saptpadi is proved, no marriage could be held legally recognizable and in such a way there should not be an application of Section 494 of the IPC. It has also been submitted that the prosecution under Section ¾ of the Dowry Prohibition Act is not at all tenable because of the fact that by 5 State Amendment Sanction has been made a condition precedent for prosecution which, in the present case, is lacking. So, a cumulative effect is that the judgment of conviction and sentence passed by the successive courts are not at all found to be legally sound as well as appreciable and is accordingly, fit to be set aside.
Legal Reasoning
6. On the other hand, learned counsel appearing for O.P. No.2 submitted that Section 498(A) of the IPC is the continuing offence which is apparent from the Section itself. Not only this, dumping Poonam Devi at her Naihar by the accused persons is the consequence as well as a kind of torture inflicted upon her by the accused persons more particularly by her husband and in the aforesaid background, there is no jurisdictional error in proceeding with the trial. It has further been submitted that during course of conduction of trial O.P. had received Memo No. 221 dated 22.11.2011 sent by Superintendent of Police, Nawada in pursuance of information sought for under RTI Act that Kishori Prasad had re-married with Sarita Devi, daughter of Bhagirath Mahto, President of Village- Nandsena, P.S. Sitamarhi in the year 2004 and two children were begotten from the aforesaid wedlock. Therefore, presumption has to be taken up on the basis of the aforesaid information duly placed during trial. With regard to Section ¾ of the Dowry Prohibition Act, it has also been 6 submitted that on account of consistent & persistent demand at the end of accused persons relating to marriage of Poonam Devi with Kishori Prasad, the aforesaid Sections are also applicable. So submitted that the judgment of conviction and sentence recorded by the successive courts is found to be legally maintainable and is fit to be confirmed. 7. Learned APP endorsed the view of learned counsel appearing for O.P. No.2. 8. Now coming to applicability of Section 494 of the IPC, it is apparent that none of the PWs has stated the fact that with whom remarriage was solemnized and whether during course of marriage any sort of rituals as required under personal law was ever performed. Not only this, the charge is also absent on this very score so far specific date of marriage is concerned as well as name of the bride with whom marriage was solemnized. When the statement under Section 313 of the Cr.P.C. has been taken into consideration, the same is also appearing to be completely deficient. 9. The Hon’ble Apex Court in the case of S. Nagalingam v. Sivagami as reported in 2001 (6) SCALE 42, dealt with the requirement for proving an offence under Section 494 IPC after taking into account all the previous judgments on this 7 very score in following way:-. “10. It is undoubtedly true that the second marriage should be proved to be a valid marriage according to the personal law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence. 11. In Kanwal Ram and Ors. v. H.P. Administration AIR, (1966) SC 614; this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed. It was held that mere admission on the part of the accused may not be sufficient. 12. The question as to whether "Saptapadi", is an essential ritual to be performed, came up for consideration of this Court in some cases. One of the earliest decisions of this Court is [1971] 1 SCC 864 Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was no evidence regarding the performance of the essential ceremonies, namely. "Datta Homa" and "Saptapadi". In paragraph 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that "Homa" and "Saptapadi" are the essential rites for a marriage according to the law governing the parties and there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. It is pertinent to note that in paragraph 9 of the judgment it is stated that both sides agreed that according to the law prevalent amongst the parties. "Homa" and "Saptapadi" were essential rites to be performed to constitute a valid marriage. Before this Court also, the parties on either side agreed that according to the law prevalent among them, "Homa" and "Saptapadi" were essential rites to be performed for solemnization of the marriage and there was no specific evidence regarding the performance of these 8 two essential ceremonies. "datta homa" 13. [1979] 3 SCC 80 Lingari Obulamma v. L. Venkata Reddy and Ors., was a case where the High Court held that two essential ceremonies of a valid marriage, namely and "sapathapadi" [taking seven steps around the sacred fire] were not performed and, therefore, the marriage was void in the eye of law. This finding was upheld by this Court. The appellant therein contended that among the "Reddy community in Andhra Pradesh, there was no such custom of performing "datta homa" and "saptapadi", but the High Court held that under the Hindu Law these two ceremonies were essential to constitute a valid marriage and rejected the plea of the appellant on the ground that there was no evidence to prove that any of these two ceremonies had been performed. The finding of the High Court was upheld by this Court that there was no evidence to prove a second valid marriage. 14. In [1991] Supp 2 SCC 616; Santi Deb Berma v. Kanchan Prava Devi also, the appellant was acquitted by this Court as there was no proof of a valid marriage as the ceremonial "Saptapadi" was not performed. This Court noticed in this case also that the High Court proceeded on the footing that according to the parties, performance of "Saptapadi" is one of the essential ceremonies to constitute a valid marriage. 15. Another decision on this point is [1994] 5 SCC 545; Laxmi Devi v. Satya Narayan and Ors., wherein, this Court, relying on an earlier decision in [1971] 1 SCC 864 (supra), held that there was no proof mat "Saptapadi" was performed and therefore, there was no valid second marriage and that no offence of bigamy was committed. 16. In the aforesaid decisions rendered by this Court, it has been held that if the parties to the second marriage perform traditional Hindu form of marriage. "Saptapadi" and "Datta Homa" are essential ceremonies and without there being these two ceremonies, there would not be a valid marriage.” 9 10. Hence, the conviction under Section 494 against the petitioner is not at all found maintainable in the eye of law because of the fact that prosecution had failed to bring the evidence on record with regard to have marriage with rituals with a girl during life time of first wife. . 11. Now coming to Section 3 of the Dowry Prohibition Act, the Section prescribes penalty over giving or taking or abets giving or taking of dowry. There is also exception whereunder the gift given to the bride or bridegroom at the time of marriage has been found excluded from the ambit of Section-3. For better appreciation Section-3 of Dowry Prohibition Act is incorporated herein below:- 3. Penalty for giving or taking dowry.-[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years.] [(2) Nothing in sub-section (1) shall apply to, or in relation to,- (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act: 10 (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given] 12. Now coming to the evidence, neither the complainant had asserted that there was demand of dowry nor had he himself stated that he had paid a single farthing in lieu of dowry for the purpose of marriage and on account thereof, the question of giving or taking or its abetment does not arise. 13. With regard to applicability of Section-4, first of all requirement has to be seen. Section 4 speaks as follows:- [4. Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.] 14. Dowry has been defined under Section 2 of the 11 D.P. Act which is as follows:- 2. Definition of “dowry”.- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person: At or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 15. That means to say that when any demand is made at or before or any time after marriage in the background of marriage of the respective parties, the said demand has been made punishable under Section 4 of the Dowry Prohibition Act and this aspect has to be gathered from the evidence available on the record and in likewise manner the applicability of Section-498A of the IPC is to be looked into. 16. With regard to attracting Section 498(A) of the IPC, the prosecution is under obligation to prove cruelty at the hands of husband or relative of husband. Further cruelty has been explained by stating that if the willful conduct of accused provoke the woman to cause harm herself or any sort of harassment for meeting with undue demand. For its appreciation, the evidences 12 are to be looked into save and except PW-5 (formal) all other witnesses are on material point. 17. PW-1 had stated that at the first occasion Poonam Devi was given congenial and harmonic atmosphere. When she revisited her Sasural, a complaint was received that a demand has been made for stalling a STD Booth. Thereafter, she was assaulted for the aforesaid purpose as well as providing solar light. She is staying at her Naihar. During cross-examination, it came to light that PW-1 is a hearsay witness. 18. PW-2 is the mother of Poonam Devi who has stated that after marriage her daughter had gone to her Sasural where she stayed for a month. Thereafter, she returned back. Then she again went there and during her stay at Sasural, the petitioner had demanded Rs. 20,000/-. Her husband had provided money. Again, her daughter came to her Maika. Just after staying 5 or 6 months, her daughter had again gone to her Sasural and at that very time, Kishori had advanced demand of solar light, a fridge and cash appertaining to Rs. 40,000/-. When the aforesaid amount was not paid, her son-in-law had remarried with Jaiprabha and he got her daughter to her place. He is insisting that after fulfilment of aforesaid demand only, he will take away Poonam. During cross-examination at para-7, she had stated that her daughter 13 elaborately, detailed the occurrence. In para-8, she had stated that she would not send her daughter as her son-in-law had remarried. 19. PW-3 is Binay Krishna Mahto, brother of victim, who had stated that on 20.04.2003 she was assaulted by Anil Mahto, Kaushal Mahto, Shiv Dayal Mahto, mother of Kishori Prasad for procurement of a fridge, solar light and cash appertaining to Rs. 40,000/-. At that very time, his father was present. When his father tried to intervene, he was also assaulted. Then thereafter, his father returned back. On 08.05.2003 Kishori Prasad brought his sister to his place. His sister had disclosed the event. He further came to know with regard to second marriage of his brother-in-law. During cross-examination at para-2, he had stated that his sister is residing at his place since 08.05.2003. At para-3 of his cross-examination, he had stated that after staying for 4 and ½ months during second visit at her Sasural, his sister came back to his place and is staying since then. 20. Mahendra Prasad Mehta has been shown as witness no.4A on account of some sort of mistake in numbering the witnesses. He had stated that the occurrence is of 20.04.2003. He had married his daughter Poonam with Kishori Prasad on 23rd June 2002. Thereafter, she had gone to Sasural. Kishori had demanded Rs.20,000/- for stalling a STD Booth which was paid 14 by him. In the next year, Kishori Prasad, wife of Anil Mahto, wife of Shiv Dayal Mahto and Sunita Devi began to advance demand of a fridge, solar light and cash appertaining to Rs. 40,000/- . On 20.04.2003, he had gone there and requested them but they did not concede. They brutally assaulted Poonam. When he intervened, he was also assaulted. On 08.05.2003, his son-in-law left his daughter at his place. Then he stated that his daughter had informed that Kishori had remarried with Jaiprabha. During cross-examination, he had detailed under para-5 the duration of stay of his daughter. In para-6, he had stated that on getting information, he rushed to the place of his daughter and in his presence the accused persons had demanded Rs.40,000/- cash, a fridge and solar light. As he shown his helplessness to satisfy them, all the accused began to assault his daughter and in course of intervention he also sustained injury. He had further stated that his son-in-law had left his daughter on 08.05.2005 and since then, she is residing at his place. 21. PW-4 is Poonam Devi, the victim. She had stated that when she had gone on Duragman in her Sasural, her father- in-law, mother-in-law, brother-in-law, Gotni, Nanad and Nandosi demanded Rs. 15-20 thousand. Her husband had not demanded. When her father had come and shown his helplessness then they demanded Rs. 40,000/- cash, solar light and a fridge. They also 15 assaulted her in her father’s presence. Her father had stated that he is going to launch a case. Then on 08.05.2003, after brutally assaulting her they forced her to leave the place and since then she is residing in her Naiher. Her husband had come and said that only after fulfilment of demand she will be taken back. During cross- examination at para-5, she had stated that she was forced to telephone her father for payment of Rs.20,000/- for stalling a telephone booth. After opening of telephone booth, she came to her Naihar and from there, she was taken back by her husband during course of stay at her Sasural cash appertaining to Rs. 40,000/-, a fridge and solar light was demanded and on account of incapability of her father to fulfil the demand, she was assaulted. Then she had detailed the event. She had further detailed under para-10 that her husband had remarried. 22. Now coming to charge, it is evident that all the Sections whereunder charge has been framed relate with an occurrence dated 20.04.2003 committed at village-Dhanvigha, P.S.Warsaliganj, Distt-Nawada while the evidence happens to be quite contrary to the same. Demand was made after 20.04.2003 which happens to be the date of marriage at village, Dharamraichak, P.S. Lakhisarai, Distt-Lakhisarai. All subsequent event having application of different penal provisions are after 16 20.04.2003. Not only this, its consequence relating to jurisdiction also happens to be after 20.04.2003. 23. Charge is the crucial stage of trial whereunder accused is known with the allegation committed by him for which he is to face trial. That means to say, by such adaptation, the accused is acknowledged with the allegation so that he be able to defend himself. 24. Section-468 of the Cr.P.C takes care of with regard to omission, absence, error, misjoinder during framing of charge and lays down that any sentence will not be subject to annulment but the present case is not of such nature rather apart from others, it has got direct impact over jurisdiction also. 25. Section 462 Cr.P.C. shield the trial by having proceeded and concluded at wrong place by the competent court. 26. Now coming to statement of petitioner recorded under Section 313 Cr.P.C. Less said is better. It appears worst than mechanical process. For better appreciation, the same is quoted below:- iz’u& xokgksa dk c;ku lquk gS\ m(cid:217)kj& th gk¡ iz’u& vki ij vkjksi gS fd eqnS;k ique nsoh ds lkFk ekj ihV fd, rFkk 4]00000@& :i;s dh ekWx fd, vkSj ?kj ls Hkxk dj nwljh ’kknh dj fy,\ m(cid:217)kj& th ughaA iz’u& lQkbZ esa vkidks D;k dguk gS\ m(cid:217)kj& funksZ"k gwWA 17 27. It is evident from relevant Sections that the finding so recorded would not be subject to interference unless and until prejudice has been caused to accused. When these infirmities have been gone through, it is apparent that right from inception on account of lapses, carelessness on the part of trial court, interest of accused is found nibbled. 28. In Sajjan Sharma v. State of Bihar reported in AIR 2011 SC 632, it has been held:- 14. Here we may also take a look at the examination of the appellant by the court under section 313 of the Code of Criminal Procedure. This examination too is highly unsatisfactory and sketchy. The first question by the court to the appellant (and for that matter to all the accused) was: “ There is evidence against you that on 24.11.94 at Davidor Bahiyar in concert with the other accused (you) killed Narain Kunwar by firing shot at him.” The appellant replied: “ It is wrong (to say that)” Whereupon the court put the second and the last question: “ In defence you wish to say anything?” The appellant replied: “I am innocent.” 15. We are constrained to say that this is not an isolated case but it is almost a stereotype. It is our experience that in criminal trials in Bihar no proper attention is paid to the framing of charges and the examination of the accused under section 313 of the Code of Criminal Procedure, the two very important stages in a criminal trial. The framing of the charge and the examination of the accused are the most unmindful and mostly done in 18 mechanical manner. We wish that the Patna High Court should take note of the neglectful way in which some of the Courts in the State appear to be conducting trials of serious offences and take appropriate corrective steps. 16. Having regard to the charge that was framed against the appellant and his examination by the court under section 313 of the Code of Criminal Procedure the point raised by Mr. Rai cannot be said to be entirely without substance but we see no reason to go into that technical aspect of the matter since we find that the appellant has a good case on merit as well. 29. Consequent thereupon, the successive findings recorded by the learned lower courts are set aside. Petitioner is under custody, hence is directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi, J) Patna High Court October 9th 2013 Perwez/AFR