Suresh Kumar Sharma S/o Late Yogi Sharma R/o Azad nagar A, Block Bhuli, P.O v. P.O. Dhansar, P.S.-Jharia, Dist- Dhanbad
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 316 of 2016 Suresh Kumar Sharma S/o Late Yogi Sharma R/o Azad nagar A, Block Bhuli, P.O. & P.S. Bhuli, Dist-Dhanbad 1. The State of Jharkhand 2. Kumari Sarita Sharma D/o Naresh Sharma, R/o Industrial Colliery, Versus P.O. Dhansar, P.S.-Jharia, Dist- Dhanbad … … Petitioner … … Opposite Parties --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. Arun Kumar, Advocate For the Petitioner For the Opp. Party-State : Mr. V. K. Vashistha, Advocate For the Opp. Party No.2 : Mr. B.R. Rochan, Advocate --- 22/03.09.2024 1. 2. Heard the learned counsel for the parties. This revision application has been filed against the judgment dated 16.12.2015 passed by the learned Additional Sessions Judge- VII, Dhanbad in Criminal Appeal No. 372 of 2012 whereby the appeal has been dismissed. The petitioner has been convicted vide judgment
Legal Reasoning
and order dated 30.11.2012 passed by learned Judicial Magistrate First Class, Dhanbad in trial No. 256 of 2012 arising out of a complaint case being C.P. Case No. 686 of 2006 for offence under section 498-A of the Indian Penal Code. The trial court had awarded punishment of rigorous imprisonment for two years with fine of Rs. 2,000/- with default sentence. But the appellate court had reduced the sentence to Rigorous Imprisonment of one year with fine of Rs. 2,000/- with default sentence. Argument of the petitioner 3. The learned counsel for the petitioner while assailing the impugned judgments has submitted that though there are concurrent findings recorded by the learned courts but the judgments are perverse. He has submitted that the evidence of DW-2 who is an 1 independent witness has not been properly considered. He has further submitted that Exhibit B and Exhibit A/1 has also not been properly considered by both the courts. He submits that D.W-1 is an independent witness and a social worker and she has deposed that the complainant herself decided to live in her parental house out of her free will and handed over Exhibit B to D.W-1 which is in the writing of the complainant which supports the aforesaid statement made by D.W-2. The learned counsel further submits that D.W-2 had also participated in the Panchayati held on 14.09.2004 and she had put her signature on Panchayatnama which was marked as A/1. The learned counsel submits that DW-2 in paragraph 9 of her examination in chief has stated that the complainant came back to her matrimonial house and again ran away. The learned counsel submits that the petitioner was throughout ready to keep his wife but it was the wife who never wanted to live with him and consequently the petitioner has been falsely implicated in this case. He submits that these aspects of the matter having not been considered, the judgment be set aside and the petitioner be acquitted. 4. The learned counsel has also submitted that there has been repeated conciliation and each time the complainant used to come back to her matrimonial home but refused to live in her matrimonial home and ultimately the present case was filed. He has also submitted that at the stage of trial also there were repeated attempts for compromise but ultimately the relationship between the parties could not be restored. 5. During the course of argument, it transpires that the petitioner had surrendered before the court at the stage of revision on 28.11.2016 and was enlarged on bail by this court vide order dated 06.12.2016. Argument of O.P. No. 2 6. The learned counsel appearing on behalf of the opposite party
Legal Reasoning
No. 2 has vehemently opposed the prayer and has submitted that there are concurrent findings with regard to torture of the complainant on account of demand of Rs. 1 lac and a motor cycle. He has submitted 2 that the complainant had fully supported her case and has been cross examined. He has also submitted that the Exhibit B is of no consequence and the same is a forged and fabricated document. The learned counsel has also submitted that apart from the submission of the petitioner that the complainant never wanted to live with the petitioner, the petitioner has not cited any reason during evidence as to why the complainant did not want to live with the petitioner. Rather there is enough material on record to show that there was torture on account of demand and in spite of that the opposite party No. 2 made all efforts to come back to the matrimonial home but on repeated occasion on account of torture she had no option but to come back to her parental house and was ultimately thrown out from her matrimonial home. He has further submitted that D.W-1 in his cross examination has stated that one Keshab Devi who was a neighbor gave information to him that the complainant fled away from the house at 11:00 PM at night and he had no knowledge about the occurrence but Keshab Devi has not been examined as witness. Argument of the Opposite Party-State 7. The learned counsel appearing on behalf of the State while opposing the prayer of the petitioner has relied upon the judgment passed by the Hon’ble Supreme court in (2019) 5 SCC 384 Rupali Devi v. State of Uttar Pradesh and others paragraphs 14 & 15 and has submitted that the torture was of such a nature that there was no scope for the petitioner to stay in the matrimonial home. He has also submitted that the demand of motor cycle and Rs. 1 lac stands established coupled with her torture on account of non-fulfillment of such demand. Therefore, the impugned order does not call for any interference. He submits that Exhibit B and Exhibit A/1 of the evidence of D.W-2 has no bearing in the matter. Findings of the Court 8. After hearing the learned counsel of the parties and upon going through the records, this Court finds that complaint case was filed on 04.05.2006 against five accused under section 498A of the Indian 3 Penal Code and under section 3/4 of Dowry Prohibition Act. It was stated that the marriage was solemnized on 22.04.2002 as per Hindu rites and customs and after marriage when the complainant went home, there was a demand of one motor cycle. The complainant went back to her parents’ house after one month and due to poor economic condition, her parents were not in a position to fulfill the demand. The petitioner being the husband came to the complainant to her parents’ house for taking Bidai and made a demand of one motor cycle and Rs. 1 lac for starting a furniture shop. But upon being pacified by the neighbour and the parents he brought the complainant to his house. In the meantime, the petitioner started threatening the complainant that he would go to Gujarat and continue to make demand of Rs. 1 lac and started putting pressure on her for the amount and tortured her physically and mentally. In the year 2003, the complainant was blessed with a female child and her in-laws showed annoyance on the birth of female child. The husband stated that if the complainant did not bring Rs. 1 lac from her parents’ house he will go to Gujarat and live there and he would keep the complainant only if Rs. 1 lac and motor cycle is given to him. The in-laws of the complainant and her husband did not take Bidai of the complainant, she remained in the parents’ house for one year and lastly on 14.09.2004 a Panchayat was held and the petitioner and in-laws of the complainant took Bidai but the behavior against the complainant did not change. She has also alleged that she was threatened by the in-laws and an attempt was made to burn her by pouring kerosene on her by her in- laws. The complainant narrated the aforesaid to her husband, and the husband kicked and abused her with filthy language and said that he would have got Rs. 2 lacs as dowry if he had solemnized marriage in another place. The complainant stated in the complaint that on 08.11.2004 her in-laws made an attempt to kill her and slapped her by saying “Kali-Kaloti”. On 10.12.2004 her husband sent her to her maike and since then the complainant is living with her parents. 4 9. Charge was framed against all the accused under section 498A of the Indian Penal Code. 10. At the stage of trial, altogether five witnesses were examined from the side of the complainant. The complainant was examined as C.W.5. The father and the mother of the complainant were examined as C.W.2 and C.W. 4 respectively and the brother of the complainant was examined as C.W.1. Another evidence is of a person namely Baneshwar Vishwakarma as C.W.3. The Panchayatnama was exhibited as Exhibit 1. Exhibit 2 and 2/1 is a bond paper. 11. On behalf of the accused two witnesses were examined. 12. The Exhibit B was exhibited by D.W-2 which was a letter written by the complainant and Exhibit A/1 is the signature of D.W-2 on the Panchayatnama. The statement of the accused was recorded under section 313 of the Cr.P.C. and there were complete denial from the side of the petitioner. 13. The learned trial court considered the evidences on record both oral and documentary including the cross examination of the witnesses and recorded the finding that there was cogent and reliable evidence against the petitioner who was the husband and ultimately convicted the petitioner for offence punishable under section 498A of the Indian Penal Code. Other accused persons were acquitted. 14. So far as the appellate court is considered, the appellate court also considered the evidences on record and arguments of the parties. The appellate court fully scrutinized the evidence of the complainant including her cross examination. Paragraph 15 dealing with the appreciation of evidence of the complainant as CW 5 as quoted under:- “15. I would like to appreciate first of all the evidence of complainant Kumari Sarita Sharma who has been examined as CW-5. The complainant deposed during her examination-in- chief that she was married with Suresh Kumar Sharma (appellant) on 22.04.2000 as per Hindu rites and customs and at the time of marriage her parents gave Rs. 1 lakh in cash, golden ring and ornaments as a gift and after the marriage she went to her in-laws house at Azad Nagar Bhuli and started living with 5 then to appellant her in laws peacefully till one month. Thereafter, her in-laws including husband started making demand of bike and thereafter, her husband (appellant) send her to her parents house and her parents and her husband stated to them that he will keep complainant if they gave him Rs. 1 lakh and one motorcycle. Then the parents of complainant and other tried to understand the appellant (husband of complainant) took the bidai of complainant with sadness. This witness has further deposed during her evidence that after bidai her in-laws kept her peacefully for one week thereafter, they started making their previous demand and started torturing the complainant physically and mentally both. This witness has further deposed that in the year 2003 she gave birth of daughter the accused/convict along with others started thereafter torturing baldy to her. This witness has further deposed that lastly on 10.12.2004 her husband (appellant) brought her at the house of her parents and left there and since then she is living with her parents. During her evidence this witness produced to bond dated 27.09.2007 and 23.11.2007 and she also proved the signature in the paper of panchayat which has been marked as Ext.1. During her cross examination in para 12 this witness has deposed that after the marriage she lived happily in her in-laws house for one year and her husband used to threat her that in case of non-fulfillment of his demand he would go to Gujarat and solemnized second marriage. C.W.1 Navdeep Kumar Sharma (brother of complainant/victim), C.W. 2 Naresh Sharma (father of complainant/victim) C.W. 4 Pratima Devi (mother of complainant/victim) have supported the case of prosecution and the factum of subjecting to cruelty and torture (physically and mentally both) to complainant by her husband Suresh Kumar Sharma for the demand of Rs. 1 lakh in cash and one motorcycle from the complainant and her parents. The evidence of C.W. 1, C.W. 2, C.W. 4 and C.W. 5 is consistent on the point of factum of torture and subjecting to cruelty to complainant by her husband Suresh Kumar Sharma (appellant) for the demand of Rs. 1 lakh and one motorcycle from the complainant and her parents. 15. The learned court has considered the evidence of the defence in paragraph 16 as under: - “16. On the other hand the D.W. 1 Parmeshwar Pandit deposed during his evidence in para 8 & 9 of his cross-examination that Keshav Devi gave information to him that complainant fled away from the house at 11:00 PM in night and he has no knowledge about this occurrence. This witness is neighbourer of appellant. D.W. 2 Husna Bano is working as social worker in NGO and related with Mahila Samiti has deposed that during her evidence 6 in para 5 that Suresh Kumar Sharma wanted to live with Sarita Devi but Sarita Devi wanted to live in her parents house. In para 12 of her examination in chief this witness has clearly stated that she is producing a letter written on the stamp paper by Sarita Devi which is in the writing and signature of Sarita Devi which has been marked as Ext. B and after handing over the aforesaid paper (Ext. B) Sarita Devi went to her parent’s house and since then she never came to her in-laws house. She also stated that she appeared at Panchyat which was held on 14.09.2004 and she proved her signature on the Panchayatnama which has been marked as Ext. A/1.” 16. The learned appellate court ultimately held that it was clear evidence of the complainant witness on the factum of subjecting the wife to cruelty and torture by her husband (petitioner) for the demand of Rs. 1 lac and one motorcycle and there was no infirmity or in consistency in her evidence. There was nothing to disbelieve the testimony of the complainant witnesses which were found to be reliable and trustworthy. The finding in paragraph 18 and 19 of the appellate court’s Judgement is quoted as under: - “18. Perused the case record and after scrutinizing the entire oral and documentary evidence adduced on behalf of both the parties, it is clear that the evidence of the complainant witnesses are consistent on the factum of subjecting to cruelty and torture (mentally and physically both) of complainant by her husband Suresh Kumar Sharma (appellant) for the demand of Rs. 1 lakh and one motorcycle and there is no any infirmity, in consistency in the evidence of the witnesses examined by the complainant and there is nothing on record to disbelieve the testimony of the evidence of the complainant witnesses. They are reliable and trustworthy on the fact um of subjecting to cruelty to a complainant by her husband Suresh Kumar Sharma. 19. Considering the entire fact and circumstance emerging from case in hand and also the submission advanced on behalf of both parties, I am of the opinion that the evidence and material available on the case record inspire the requisite amount of confidence. Under such circumstances, testimony of is cogent, reliable, consistent and complainant witnesses credible evidence against convict, namely, Suresh Kumar Sharma for the offence U/s 498A IPC and I find that the complainant has been able to prove and substantiate the charge levelled against the accused/appellant beyond the shadow of reasonable doubts. As such I do not find any illegality, ambiguity the 7 and absurdity in impugned judgment of conviction and order of sentence passed by learned court below. The learned court below rightly hold guilty to accused/convict for the offence punishable U/s 498 (A) IPC and rightly passed the order of the sentence against judgment of conviction and order of sentence passed by learned court below does not require any interference, Accordingly, the judgment of conviction passed by learned court below against the appellant is hereby affirmed. ” the accused/appellant, accordingly, 17. The learned appellate court upheld the judgment of conviction of the trial court however modified and reduce the sentence from two years to one year with fine of Rs. 2,000/- with default sentence. 18. This Court finds that both the learned courts have scrutinized the evidences on record and have found that the evidence of C.W. 5 was intact and reliable as against the petitioner (husband) and her evidence was supported by the other witnesses from the side of the prosecution and there was consistent evidence on record with regard to demand of Rs. 1 lac and one motorcycle from the complainant and her parents. This Court is of the view that so far as the evidence of D.W-2 is concerned, who has stated that the complainant on her own will had gone back to her parental house, the same is of no consequences inasmuch as the evidence of the complainant clearly demonstrates the circumstances in which the complainant was left by her husband in her parental house and the factum of torture by her husband has been fully supported by her on account of non-fulfillment of Rs. 1 lac and one motorcycle. Moreover, this Court also finds from the deposition of D.W-2 that she has herself stated in paragraph 9 of her examination in chief that after the complainant had given her the said document, the complainant came back to her matrimonial home and again left her matrimonial home. The document referred is exhibit B as this is the only document stated to have been handed over by the complainant to D.W-2. 19. This Court is also of the view that the courts have considered the evidence of both the sides and has given concurrent findings with regards to the conviction of the petitioner (husband). In such 8 circumstances there is no scope for re-appreciation of evidences in the revision jurisdiction and coming to a different mind in absence of any perversity or material irregularity. This Court finds no illegality of perversity in the impugned judgments passed by the learned courts. 20. At this the learned counsel for the petitioner submits that the sentence to the petitioner be modified. 21. Considering the facts that the complaint was filed in the year 2006 and much time has elapsed and the present revision has also remained pending before this Court since 2016, this Court is of the view that for the ends of justice, the sentence of the petitioner is required to be modified with imposition of fine. This Court finds that there is no minimum sentence as such prescribed under section 498A of the Indian Penal Code under which the petitioner has been convicted. 22. Considering the totality of facts and circumstances, the sentence of the petitioner is hereby reduced to six months simple imprisonment and the fine amount is enhanced from Rs. 2,000/- to Rs. 25,000/- to be deposited by the petitioner within a period of two months from the date of communication of this judgement to the concerned court. If the petitioner does not deposit the fine amount within the stipulated time, the petitioner would serve the sentence as awarded by the appellate court. 23. The fine amount so deposited is directed to be remitted to the opposite party No. 2 after due identification. 24. Accordingly, this revision is disposed of with aforesaid modification of sentence. 25. The bail bond furnished by the petitioner is cancelled. 26. The office is directed to send back the trial court records to the court concerned. 27. Let a copy of this order be communicated to the court concerned through ‘FAX/E-mail’. Rakesh/- (Anubha Rawat Choudhary, J.) 9