Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.280 of 2010 ====================================================== Md.Salauddin Son of Md. Samsuddin, resident of Village- Sirnabad, P.S. Simri Bakhtiarpur, District- Saharsa. Versus .... .... Appellant/s State Of Bihar .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent/s : Mr. Satya Narayan, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL ORDER 5 03-07-2013
Legal Reasoning
In this jail appeal one Mr. Arun Kumar Tripathi appears appointed as Amicus Curiae on 06.04.2010 and subsequently it was admitted on 13.04.2010. Heard him at length besides Mr. Satya Narayan, the learned Additional P.P. This appeal has been preferred against the judgment of conviction of the appellant for the offence under sections 498 A and 307 of the I.P.C. and sentenced to undergo R.I. for three and ten years respectively. However, both the sentences were to run concurrently in Sessions Trial No. 213 of 2001 arising out of Bhakhtiarpur P.S. Case 134 of 2000, G.R. No. 837 of 2000 by the 1st. Additional Sessions Judge, Saharsa on 16th December, 2009. The prosecution case, in short, as revealed from Ext.1, written application submitted with thumb impression of Patna High Court CR. APP (SJ) No.280 of 2010 (5) dt.03-07-2013 2 wife of the appellant, namely, Noor Jahan Khatoon, P.W. 7 is that since the appellant was mason at Delhi she also went there where she found his activities improper and on protest she was being assaulted and even attempts were made to kill her. However, her parents brought her back to the village where also she was assaulted and any how saved from murderous attempt of the appellant. After investigation the police submitted charge sheet and the appellant faced trial for the offence under sections 498 A and 307 of the I.P.C. In this case for brief periods at different intervals the appellant remain in custody and finally right from 12th April, 2009 he is in custody. At no point of time thereafter either before the trial court or in appeal any prayer for bail was made. During trial altogether eight witnesses have been examined besides following three documents:- Ext.1- Endorsement on the written application. Ext. 2– Formal F.I.R. containing written application. Ext. 3- Injury report. It is submitted by Mr. Tripathi, Amicus Curiae that right from the written application till close of the prosecution case by examining eight witnesses, at no point of time there is any Patna High Court CR. APP (SJ) No.280 of 2010 (5) dt.03-07-2013 3 allegation of torture of the Informant, P.W.7 at the hands of the appellant relating to any sort of cruelty as defined to attract an offence under section 498 A of the I.P.C., which reads as such:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Explanation:- For the purpose of this section, “cruelty” means- (a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” There appears much substance in the submission and on careful examination of the material on record, the leaned Additional P.P. also concedes to such submission. Hence, conviction under section 498 A I.P.C. is not sustainable. In this case Mr. Arun Kumar Tripathi, Advocate has been entrusted responsibility to represent the interest of the appellant as Amicus Curiae. It is matter of appreciation that Mr. Tripathi has tried his level best and also contended that though the Patna High Court CR. APP (SJ) No.280 of 2010 (5) dt.03-07-2013 4 witnesses examined states about assault of the informant by the appellant on the particular date and time by means of Chhura, but none of them speaks about any treatment by bringing her before any competent Doctor. Even the informant, P.W.7 is not very much clear on the point. However, though the Doctor has not been examined without any explanation offered, but injury report is on the record by way of Ext. 3, the injury report of the victim- informant, P.W. 7 taken under section 294 of the Cr.P.C. is on record which indicates the informant sustained following three injuries:- .DAYA HATH KA BAH MAI SILA HUA I. JAKHM KA NISHAN. I. II. BAYE JAGH MAI KHASH KA NISHAN GARDAN PAR DAG KA NISHAN Simultaneously, nothing appears from plain reading of the injury sustained that they were at any point of time grievous in nature inflicted at any vital part of the body. So, in absence of any material for the offence under section 307 of the I.P.C. is also not at all made out. At best the appellant may be held guilty for the offence under section 324 of the I.P.C. and the appellant has served much more than the maximum period of sentence prescribed for such offence. Hence, conviction of the appellant for the offence Patna High Court CR. APP (SJ) No.280 of 2010 (5) dt.03-07-2013 5 under sections 498 A of the I.P.C. is set aside and his conviction under section 307 I.P.C. is converted into section 324 of the I.P.C. with the sentence undergone and with above modification appeal
Decision
is disposed of. And the appellant is ordered to be released at once since as stated above he has suffered much more than prescribed sentence. Let a copy of this order be also furnished to Mr. Arun Kumar Tripathi, Advocate, Amicus Curiae for needful towards realization of fee from the competent authority. (Akhilesh Chandra, J) Abhay/-