Criminal Appeal No. 164 of 2023 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 558 of 2024 Anand Kumar, aged about 36 years, S/o Birendra Yadav, R/o Village- Koiri Bigha, Aurangabad, P.O.- Kunda, P.S.- Muffasil, District- Aurangabad, Bihar Petitioner … … -Versus- 1. The State of Jharkhand 2. Pinki Kumari, D/o Mandeep Yadav, R/o H. No. 240, Backside of Big Bazar, NH-33, Pardih, P.O.- Mango, P.S.- Mango, District-East Singhbhum, Jharkhand … … Opp. Parties CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the State For the O.P. No. 2 --- : Mr. Mukesh Kumar Dubey, Advocate : Mr. Achinto Sen, APP : Mr. Kaushik Sarkhel, Advocate : Mr. Lalit Yadav, Advocate --- 16/08.08.2024 2. Heard the learned counsel for the parties. This revision is directed against the judgment dated 29.04.2024 passed by the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur in Criminal Appeal No.164 of 2023 whereby and whereunder the learned appellate court allowed the criminal appeal filed by the informant and reversed the judgment of acquittal dated 23.06.2023 passed by the learned J.M. 1st Class, Jamshedpur in G.R. Case No.17 of 2017 corresponding to Trial No.01 of 2023 arising out of Mango P.S. Case No.02 of 2017 and convicted the petitioner under Section 498A of IPC and sentenced him to undergo rigorous imprisonment for one year with fine of Rs.10,000/- and in case of default of payment of fine to further undergo S.I. for three months. However, the learned appellate court did not disturb the acquittal of the petitioner for the offence under Section 4 of the Dowry Prohibition Act. The learned trial court had acquitted the petitioner from the charges under Section 498A of IPC and also Section 4 of the Dowry Prohibition Act. Argument of the petitioner 3. Learned counsel for the petitioner while assailing the judgment passed by the Appellate Court has submitted that the impugned judgment is perverse and calls for interference. He has submitted that the learned Appellate Court has not considered the reasons for acquittal which was given by the learned Trial Court while acquitting the petitioner. He further submits that the Hon’ble Supreme Court in the case of Chandrappa and Others -vs- State of Karnataka reported in (2007) 4 SCC 415 has laid down the general principles regarding powers of Appellate Court. He has referred to sub para 4 and 5 of Paragraph 35 to submit that the appellate court must bear in mind that in case of acquittal, there is double presumption in favour of the accused and if two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal recorded by the learned trial court. The learned counsel submits that it has been held that the power of the Appellate Court is as wide as that of Trial Court and the appellate court has the power to reappreciate and reconsider the entire evidence brought on record by the parties and come to its own conclusion on facts as well as law and has also to examine as to whether the view taken by the Trial Court was a possible and plausible view. The learned counsel has also submitted that the petitioner having been acquitted for the charge under section 4 of the Dowry Prohibition Act, there was no occasion to convict the petitioner under Section 498A of the Indian Penal Code. Argument of opposite party (informant) 4. The learned counsel appearing on behalf of the opposite party no.2 informant while opposing the prayer has submitted that the appellate court has considered every aspect of the matter and the same does not call for any interference. He has further submitted that merely because the petitioner has been acquitted for offence under Section 4 of the Dowry Prohibition Act, the same does not mean that he cannot be convicted under Section 498A of IPC. He submits that Section 498A of the IPC has two explanations for the purposes of defining cruelty and as per explanation (b) harassment of women in relation to meeting any unlawful demand or property or valuable security or on account of failure by her or any person related to her to meet such demand is enough to attract section 498A and such demand need not be relatable to dowry. The learned counsel has relied upon 2 the judgment passed by the Hon’ble Supreme Court reported in (2013) 4 SCC 551 (Modinsab Kasimsab Kanchagar versus State of Karnataka and Another) and has referred to paragraph 12 thereof to submit that any unlawful demand of property or valuable security coupled with harassment is enough to attract Section 498A of IPC. He has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Special Leave Petition (Criminal) No. 12216 of 2020 decided on 19th October 2020 reported in 2023 INSC 933 and has referred to paragraph 18, 19, 20 and 21 of the said judgment to submit that in the said case, although the Hon’ble Supreme Court had acquitted for offence under Section 304 B IPC as well as Section 3/4 of Dowry Prohibition Act, still convicted under Section 498A of IPC. The learned counsel submits that mere acquittal under section 4 of Dowry Prohibition Act does not automatically result in acquittal under
Legal Reasoning
Section 498A of IPC. The learned counsel submits that the allegation of harassment in the present case is well established as is discussed in paragraph no. 21 of the appellate court’s judgment. Rejoinder argument of the petitioner 5. In response, the learned counsel for the petitioner has submitted that without prejudice to his submission regarding correlation between acquittal under Section 4 of Dowry Prohibition Act and 498A of IPC in which the petitioner has been convicted, there is no finding with regard to harassment of the informant which was in relation to an alleged demand of Rs. Twelve lacs and Duster Car for the purposes of contesting election by the mother-in-law of the petitioner. He has submitted that alleged demand was made by the father-in-law, mother- in-law and sister-in-law of the Informant, but all the three persons have not been charge-sheeted and there was no demand in this respect from the side of the petitioner. The learned counsel has also submitted that the trial court has discussed the materials on record and discarded the plea of harassment completely, but the learned appellate court has not at all considered the findings which has been recorded by the learned trial court and has simply stated that the judgment of the trial court is perverse. 3 6. The prosecution case is based on the written report lodged by Informant-Pinki Kumari on 02.01.2017 before the Officer-in-charge, Mango Police Station, Jamshedpur alleging that she was married with petitioner on 10.03.2016 at Jamshedpur in accordance with Hindu rites and customs. After the marriage, she went to her matrimonial home with the petitioner where she lived for about 10 days. The situation was normal for one week, but thereafter, her mother-in-law Lalita Devi and sister-in-law Priti Kumari started taunting her that she had brought cheap articles in dowry. Her mother-in-law called the neighbours and told them in her presence that her father had given cheap articles and has not given proper jewellery. Her mother-in-law and sister-in-law humiliated her in front of the neighbouring ladies. When she informed the same to the petitioner, the petitioner also took the side of his mother and sister. Her father-in-law Virendra Yadav, brother-in-law Vikash Kumar, Sister-in-law Priti Kumari started building pressure upon her saying that her mother-in-law was to contest election of mukhiya for which they need funds. Her mother-in- law asked her to bring Rs.12 lakhs, otherwise she will have to live in parental house. On 20.03.2016, she came to her parental house at Jamshedpur and the petitioner demanded Rs.12,00,000/- (Twelve Lakh) and a Duster car from her parents, brother and sister. He abused and slapped her in front of her parents and told her to complete her Ph.D. from there only. Her parents had spent money as per their capacity in her marriage, even then her in-laws tortured her mentally and physically for dowry. On 20.03.2016, when she came to her parental house from her matrimonial house, the electricity got disconnected in the night. When she lighted a candle and went in the room, her husband taunted her that there was no arrangement of inverter in her house. After saying cheap persons to her parents, he threw the lighted candle upon her due to which her stola (chunni) caught fire. Anyhow she saved herself. All her family members saw the occurrence, but they prefer to remain silent at that time. On 20.03.2016, when she had come to her parental house, her mother-in- law and sister-in-law had taken away all her jewelleries and had kept 4 with them. They had told to sell them and use the money in election. After 24.03.2016, the petitioner never came to take her back, rather he used to abuse her on phone. Her brother-in-law Vikash and sister-in- law Priti also used to abuse her on phone. When her father tried to settle the matter, her mausa sasur Lorik Yadav said that the petitioner is an officer in Bank, but he did not give sufficient dowry and therefore, they should to be ready to face the consequences. Her mausa sasur who was a practicing lawyer at Aurangabad, being well versed with law, used to instigate her in-laws for dowry and used to bully her father of his advocacy. The petitioner was working in Central Bank of India, Deepnagar Branch, Bhusawal while she was pursuing her Ph.D. from Social Work Department, University of Delhi. But, due to all these disputes, she used to live at her parental house at Jamshedpur. She alleged that her in-laws ruined her matrimonial life. Thinking all would be well, she remained silent and bore the torture, but she found no improvement. 7. On the basis of the written report, the case was registered as Mango P.S. Case No. 02/2017 dated 02.01.2017 under Section 498A IPC and Section 4 of the Dowry Prohibition Act against six persons including the petitioner. After completing investigation, the Investigating Officer submitted Charge-sheet No. 243/17 dated 30.10.2017 under Section 498A IPC and Section 3/4 of Dowry Prohibition Act against the petitioner only showing lack of evidence against rest five named accused persons. Thereafter, on 01.11.2017, cognizance of the offence under Section 498A of IPC and Sections 3/4 of Dowry Prohibition Act was taken against the petitioner. 8. On 02.08.2019, charges under Section 498A of IPC and Section 4 of Dowry Prohibition Act were framed against the petitioner which were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 9. In course of trial, the prosecution examined altogether seven witnesses namely, PW-1 Mandeep Yadav, father of Informant, PW-2 Bateshwar Pandey, neighbour, PW-3 Om Prakash Singh @ Guddu, neighbour, PW-4 Kunti Devi Mother of Informant, PW-5 Pinki 5 Kumari, informant, PW-6 Ram Chandra Ram, first Investigating Officer and PW-7 Atiqur Rahman Khan, second Investigating Officer. 10. Certain documents have also been exhibited on behalf of the prosecution which are Exhibit- 1 & 2 – Passbook of PW-1 of State Bank of India & I.O.B. respectively, Exhibit- 3 & 3/1 – Deposit slips, Exhibit-4 – Signature of informant on FIR, Exhibit-P4/1/PW6 – Endorsement on FIR, Exhibit-P5/PW6 – Formal FIR and Exhibit- P6/PW7 – Charge-sheet. 11. PW-1 is the father of the Informant. In his examination-in- chief, he deposed that the marriage of his daughter was solemnized on 10.3.2016 with the petitioner and at the time of marriage, he had gifted gold chain & jewelleries, furniture, household articles and Rs. 12.20 Lakh in cash. He furnished his bank account passbook of State Bank which contains transactions dated 04.02.2016 & 23.12.2015 for Rs. 20,000/- & 1,00,000/- transferred in the bank account of Anand Kumar and Virendra Yadav respectively. He exhibited the same as Exhibit-1. He also produced passbook of I.O.B. which contains transactions dated 22.12.2015, 29.12.2015 & 20.01.2016 for Rs. 3.5 lakh, Rs. 5.50 lakh & Rs. 2 lakhs transferred in the account of Virendra Yadav and exhibited the same as Exhibit-2. He exhibited two deposit slips of Rs.5 lakh & Rs. 50,000 as Exhibit-3 & 3/1 respectively. He further deposed that after marriage, his daughter went to her matrimonial house where she lived well for 10 days, but thereafter, Virendra Yadav, mother-in-law Lalita, Priti Kumari, brother-in-law Vikash Kumar, mausa sasur started torturing her and demanded Rs.12 lakh and one Duster Car from her for Mukhiya election of Lalita Devi. His daughter informed about torture upon which he went to the village and came to Tata on 20.03.2016 with his daughter and son-in-law. When he went to the matrimonial house of his daughter, the parents-in-law of his daughter demanded an amount of Rs.12 lakh to contest Mukhiya election, but he showed his inability. His daughter and son-in-law remained in Tata for about 3 – 4 days. When the electricity got disconnected, his daughter lightened candle and then the petitioner threw the lighted candle on his daughter, due to 6 which stola of his daughter caught fire. The petitioner demanded Duster car and Rs. 12 lakhs and told that otherwise he would leave his daughter. After 4 days, his son-in-law alone went to Pune and after three months, his daughter went to Delhi to pursue her Ph.D. In June 2016, he went to the matrimonial house of his daughter and asked to bring his daughter, but they demanded Rs.12 lakh and a Duster car and told that otherwise they would not keep any relation with him. On 05.12.2016, Virendra Yadav and mausa sasur came to his house for a Panchayat and agreed that he would not continue relations with them. When his daughter was coming to Tata, Virendra Yadav had kept all her jewelleries with him. On 23.12.2016 he received a notice u/s 9 in Aurangabad which was dismissed. His daughter is doing job in Dhanbad. During cross examination, he stated that his daughter did Ph.D. in Hansraj College, Delhi for three years, from June 2013 to May, 2016 and stayed there in the Hostel. He further admitted that the marriage of his daughter was solemnised on 10.03.2016 and he has stated in his examination-in-chief that his daughter stayed at her matrimonial house for 10 days and he brought his daughter and son- in-law on 20.03.2016 to Tata and after 20.03.2016, his daughter never went to her matrimonial house. His daughter had told him about the incident of her matrimonial house. His daughter had not got burnt in the said incident. He further admitted that when his daughter filed the case, she was pursuing her Ph.D. and after 9 – 10 months, she had come to Jamshedpur to file the case on 18.12.2016. He admitted that he told to the police that he had given the money and other articles voluntarily in the form of gift. On 20.03.2016, his daughter informed him about the torture and he went to her matrimonial house. On next day 21.03.2016, he brought his daughter and son-in-law to Tata. On 22.03.2016, the stola of his daughter was burnt with candle, but he did not inform to police and after the occurrence, his son-in-law had stayed at his house for 2 -3 days. He had not made any complaint regarding the demand of money by the mother-in-law for contesting the election of Mukhiya and no information was given regarding demand of Rs.12 Lakhs and Duster Car. Matrimonial Suit 162/16 was 7 filed by his son-in-law in Aurangabad to keep his daughter. In course of mediation and deposition, his daughter refused to go to her matrimonial house and thereafter, the case was dismissed. After 20.03.2016, his daughter did not want to go to her matrimonial house because she was tortured there. He admitted that Complaint case No. C1-37/17 had been filed against him in which he is on bail. 12. PW-2 and 3 are the neighbours of the informant who have supported the case but have stated that they have come to know that the informant was tortured at her matrimonial home regarding marriage gifts and after one week of marriage torture was committed upon the informant with respect to demand of one four-wheeler vehicle and Rs.12 lakh .During cross-examination, P.W-2 admitted that the informant and her father had informed him and this witness had never gone to the matrimonial house of informant; Police had recorded his statement after about one year; the petitioner and his father had come to Jamshedpur; the girl did not want to live with her husband and the girl is doing job at Delhi. During cross- examination, P.W-3 admitted that he had not seen the occurrence by his own eyes and he had come to know about the occurrence from the informant and her father and he was informed that the informant had stayed at her matrimonial house for 10 days only. He further admitted that the petitioner had filed a case to keep his wife (the informant) . 13. PW-4 is the mother of the Informant and in her examination- in-chief, she deposed that the informant is her elder daughter and her marriage with the petitioner was solemnised on 10.03.2016 and articles of Rs. 10 lakh and cash amount of Rs.12 lakh were given. After marriage, she went to her matrimonial house. After 10 days, she returned to her parental house. The Informant told her that her mother- in-law wanted to contest election and all the family members demanded Rs.12 lakh and a Duster Car and assaulted her. During her cross-examination, she stated at the time of marriage, her daughter was pursuing P.G. course in Delhi. She came from Delhi for marriage and again came to file the case. Her daughter did not file a case to live with her husband. She left for Delhi after 10-15 days when her son-in- 8 law left her daughter at her house. After her return from matrimonial house to her parental house, her daughter never met with her husband again, nor she went to her matrimonial house. She further admitted that the case was filed after about one year of the marriage. She denied the suggestion that her daughter did not want to live with her husband just after her marriage and she was engaged with another person. 14. PW-5 is the Informant of the case. In her examination-in- chief, she deposed that she was married with the petitioner on 10.03.2016 at Jamshedpur. On next day of the marriage, she went to her matrimonial house where she lived for 10 days. It was well for few days, but thereafter, all her in-laws started taunting her for dowry. They were demanding Duster Car repeatedly. On the occasion of Holi on 20.03.2016, she returned from her matrimonial house with the petitioner and thereafter, she never went to her matrimonial house. In her parental house also, a quarrel had taken place for dowry and the petitioner had thrown candle upon her and had assaulted and abused her. After Holi, she did not go to matrimonial house ever. Her husband used to abuse her on phone. Her entire Stridhan is lying in her matrimonial house. She exhibited her signature on the written report as Exhibit-4. During cross-examination, she admitted that she was pursuing Ph.D. in Delhi since 2015 before her marriage and after one month of her marriage, she joined the college and she is living separately since April 2016, but she cannot not state the date. she further admitted that she had stayed at her matrimonial house for 10 days only and she had never informed anything about her matrimonial house. She denied the suggestion that she was living separately since 20.03.2016. She further admitted that the articles were given in her marriage voluntarily in the form of gift. Her husband was working in the bank since before the marriage. Her husband had sent money in her account before marriage. On 11.05.2016, an amount of Rs.5,000/- was sent. At that time her relationship with her husband was good. On 20.03.2016, she came to Jamshedpur with her husband and thereafter, she never went to her matrimonial house. She did not file any case for living with her husband. On 24.04.2016, she had gone to Manali with 9 her husband for honeymoon where photographs were taken. She identified the photocopy of cash memo No. 7406 dt 24.08.2016 of Delhi University, Bus ticket S. No. 073 dt. 24.04.2016 of Chamunda Travels & photograph of Manali which have been marked as Identification-X to X/2 respectively. She further admitted that Matrimonial Suit No. 162/16 was filed under Section 9 by her husband in Aurangabad Court in which she appeared and filed her reply. She does not remember the date of burning of dupatta. She further admitted that her father-in-law had come to Jamshedpur for mediation and to take her back, but she was in Delhi at that time. On being telephoned by her father-in-law, she refused to live with them. She was told to talk to the petitioner, but he refused. She does not know about any Panchayati taking place in the village. On 10.01.2017, a Panchayat was convened in which her father-in-law also came and a Complaint Case No. 37/17 was filed by her father-in-law in Aurangabad Court for assault and snatching of money in which she, her father and others were made accused persons, and she is on bail in that case. During Dussehra, 2016, her husband went to Delhi to take her, but she did not talk about purchase of flat and transfer to Delhi. She remained in Delhi till March 2018 during her Ph.D. during which she used to come to Jamshedpur very little and it was not possible to live in matrimonial house during that period. Her mother-in-law was to contest Panchayat election in May 2016 due to which money was demanded. They did not give money even though her mother-in-law won the Panchayat election. She returned to Jamshedpur from her matrimonial house without anything. Till her meeting in Guest House, the relation was good, but she tried later on also. She denied the suggestion that her husband tried to keep her with him. She admitted that her husband filed a case u/s 9 for restitution in Aurangabad, but he lost. She denied that she had relationship with another person due to which she filed the false case. She further stated that the petitioner has married again even before divorce. 15. PW-6 is the first investigating officer of the case and he deposed that on 02.10.2017, he was posted as S.I. in Mango P.S. and 10 on the basis of written report, Mango P.S. Case No. 02/2017 dated 02.01.2017 under Section 498A IPC and Section 4 of Dowry Prohibition Act was registered and charge of investigation was given to him. In course of investigation, he recorded re-statements of the informant and visited the place of occurrence. He recorded the statements of the witnesses namely, Mandip Yadav, Kunti, Soni Kumari, Bateshwar Pandey, Om Prakash Singh @ Guddu Singh, Jagdish Mishra and Nisha Kumari on different dates. On 26.4.2017, he went to the place of occurrence and recorded the statements of Ramswaroop Yadav and Rajendra Prasad Yadav. On 29.07.2017, he handed over the charge of investigation of the Officer-in-charge of Mango P.S. He exhibited the writing & signature of Phulan Nath on endorsement of FIR as Exhibit-P4/1/PW6 and the signature on the formal FIR as Exhibit- P5/PW6. During his cross examination, he admitted that he has deposed with the help of the Case Diary. before visiting the place of occurrence, he had recorded the statement of the Informant, but he had not mentioned the time of recording re- statement of informant in the Case Diary. Om Prakash Singh @ Guddu Singh and Jagdish Mishra were neighbours of informant. He further admitted that he had not mentioned the time of recording of the statements of any witness in the Case Diary. None of the witnesses said that the Informant was assaulted in the dining hall and he had not seized any articles from the place of occurrence. He had not recorded the statements of the witnesses Surendra Yadav and Thakur Manjhi who reside within the boundary of the place of occurrence. He had also not recorded the statements of the witnesses of Aurangabad where he had gone to conduct raid. He further admitted that the Informant and other witnesses had stated that the Informant had stayed at her matrimonial house 10 days only. 16. PW-7 is the second Investigating Officer of the case and he deposed in his examination-in-chief that he took the charge of investigation on 31.07.2017 from Ramchandra Ram (PW-6). On 10.10.2017, he recorded the statements of the independent witnesses namely, Arun Kumar, Krit Yadav and Nandu Singh. In the light of 11 Supervision Note of his superior officer, he submitted Charge-sheet against the petitioner showing lack of evidence against other accused persons. He exhibited his writing and signature on the Charge-sheet as Exhibit- P6/PW7. During his cross examination, he admitted that he had not received any document relating to dowry from any witness. He admitted that he had met the father of the petitioner, but he had not taken his statement and he had also not visited Central Bank of India, Deepnagar Branch to meet the petitioner. The witness Arun Kumar had not stated about demand of dowry and torture in his statement and admitted that the informant was not ready to live with her husband and her father was demanding an amount of Rs.20 lakh as total expenditure. He had not found the involvement of mother-in-law, father-in-law, sister-in-law and other members of the family. Since the Informant did not live in her matrimonial house for more days, the allegations upon her in-laws were baseless. The witness Kriti Yadav had stated that Panchayati was held, but the father of informant was not ready to settle the matter and he was demanding Rs.20 Lakhs. Subsequently, he came to know that he had filed a case in Mango P.S.. The witness Nandu Singh had stated that the family members of the petitioner have nothing to do with the dispute and demanding of dowry from the Informant is incorrect. Virendra Yadav had requested the family members of the Informant, but the Informant was not ready to live with the petitioner. 17. On 06.05.2023, the statement of the petitioner was recorded under Section 313 of Cr.P.C. wherein he denied the incriminating evidences put to him and stated that he had come to Jamshedpur on the occasion of Holi with his wife. He also denied the allegation of demanding Rs.12 Lakhs and one Duster Car from the parents of the Informant and also denied to have thrown any lighted candle upon the Informant on 20.03.2016. He denied the evidence that the Informant’s father had given jewelleries worth Rs.3 Lakhs, household articles worth Rs.9 Lakhs and Rs.12 Lakhs in cash. He claimed to be innocent. 12 18. After conclusion of trial, the learned trial court acquitted the petitioner from the charges under Section 498A of IPC and Section 4 of Dowry Prohibition Act by recording the findings as under: “9. …………………………………………………….. After going through the evidences, it appears that P.W. 5, who is informant herself contradicted her statement by deposing in para 28 of her cross examination by stating that all the items were gifted to her during the marriage. She admitted the fact that her husband was filed restitution in the court of Aurangabad. She also admitted the fact that on 10.1.2017 his father-in-law subject to assault and her father was made an accused in which she was granted bail. She has nowhere proved that the money was demanded from her parents as per section 4 of Dowry Prohibition Act. In her deposition nowhere she has stated that the date of incident regarding the throwing of candle on her, it has been deposed in para 52 of her cross examination. She herself stated that she stayed at her in laws for 10 days, but the witness no. 3 stated in para 7 of the examination in chief he had seen the informant at parents’ house after 5 to 6 days from her marriage. This is a contradictory statement as per Indian Evidence Act. P.W. 4 who is the mother of informant has also stated in her cross examination that all the items during the marriage was given in the form gift. Another fact here is that the incident which has been reported in the FIR was the period of 20.3.2016 and the FIR has been registered on 2.1.2017 and the informant herself has stated that after Holi Celebration she went back to Delhi for pursuing her P.H.D and never returned back to her matrimonial house. The time period for the incident as per FIR from 20.3.16 till 2.1.2017, during this period the informant herself has admitted that her husband Anand Kumar visited her at Delhi and they went for vacation. the photographs and other documents have been admitted by her. She also admitted that she was in good relationship with her husband during these time period. P.W. 7 who is the 1.O during the investigation one witness Nandu Singh has stated that the demand for dowry by the accused is false and it was also found that at the time filing of charge sheet other accused persons were not chargesheeted as the 1.O did not find any evidence against them. The prosecution here has failed to prove the charges beyond the reasonable doubt. 10. Thus, it is, apparent from the material on record and it transpires that prosecution has miserably failed to prove 13 offence u/s 498A of IPC and Sec. 4 of Dowry Prohibit Act against accused Anand Kumar and has not produced any iota of evidence to bring home the charges u/s 498A of IPC and Sec. 4 of Dowry Prohibit Act levelled against the accused Anand Kumar. Keeping the above in view, I find and hold accused persons namely, Anand Kumar is not held guilty of charges levelled against him under Sections 498A of IPC and Sec. 4 of Dowry Prohibition Act. He is therefore acquitted from the charges under Sections 498A of IPC and Sec. 4 of Dowry Prohibition Act arising out of Mango P.S. Case No. 2 of 2017 corresponding to G. R. Case No. 17 of 2017. He is acquitted and discharged from the liability of their bail bonds. Sureties are also discharged.” 19. The learned trial court was of the view that offences under Section 498A of IPC and Section 4 of Dowry Prohibition Act were not proved beyond reasonable doubt against the sole accused -the husband (the petitioner) and accordingly, the learned trial court acquitted the petitioner from the charges. 20. Being aggrieved by and dissatisfied with the Judgment of acquittal of the petitioner passed by the learned trial court, the Informant filed Criminal Appeal No.164 of 2023 before the learned appellate court. 21. The learned appellate court after hearing the parties, recorded its findings at Para-20, 21, 25 and 26 which are as under: “20. On looking into the deposition of prosecution witnesses namely, Para 1 of PW1 and Para 28 of PW5 it becomes clear that the articles given at the time of marriage was in the form of gift. Further, in Para 5 of PW1, Para 6 of PW4 and Para 68 of PW5, it becomes clear that the demand was made after marriage and for the purpose of contesting election by the mother-in-law of informant. Both these categories will not come within the purview of dowry as per Dowry Prohibition Act. Hence, charge u/s 4 of the D. P. Act shall fail. 21. On looking in to the deposition of informant wife (PW5) it becomes clear that after few days of her marriage, her in-law’s started taunting her for dowry. When she came to her maika on 20.03.2016 with her husband, he quarrelled with her for demand of dowry. He threw lighting candle upon her. He beat and abused her. He used to threaten her on telephone. All her 14 Stridhan were kept by her in-law’s. During cross-examination, she admitted that on 24.04.2016 she went to Manali for honeymoon with her husband. On 11.05.2016 her husband transferred an amount of Rs.5,000/- to her till that time their relations were good. Further, on 29.08.2016 her husband stayed in the hostel of Delhi University and it appears that it was their last meeting. Even if all these facts are true, the next fact that they did not meet after August 2016 is not denied. The defence side raised the defence that a Matrimonial Suit for restitution of Conjugal Rights has been filed in the Court situated at Aurangabad in 2016 itself, in which the informant herself refused to go with her husband. This situation has been explained by the informant in para 49 of her cross-examination that there was no condition to live in her matrimonial house therefore, she refused. The defence has also taken the plea that a Complaint Case bearing C1 Case No. 37/17 was filed by the father of accused Anand Kumar against the informant, her father and other persons in Aurangabad and they were on bail in that case. This also suggest about the harassment of informant. Further, in para 75 of her cross-examination an allegation about informant having relationship with some other person has been levelled to which the informant has negated. Similar suggestion has also been taken from her mother PW4 also. But nothing could be brought on record on behalf of defence in support of such allegation which renders the allegation to be baseless. This, itself appears to be a cruelty. The defence side has also taken the plea that a petition for Mutual Divorce has been moved in the jurisdictional court at Aurangabad. The informant in para 75, has mentioned that he has remarried even before getting the divorce. This conduct only fortifies the cruelty upon the informant. Thus, the action of petitioner comes under the purview of cruelty u/s 498A IPC. 25. Learned counsel also submitted that the FIR has been registered about one year after the alleged occurrence. In this regard, the court is of considered opinion that it is natural for a lady to save her matrimonial life first and the recourse of police help used to be taken as a last resort. It is settled law that the offence of cruelty is a continuous offence. PW5 specifically admitted that she was in touch with her husband till the Month of October 2016. Considering the bitterness in the relationship in both families, it is quite natural that the informant was hoping the relationship to become good. The entire prosecution case should not be disbelieved only on the score of delay in lodging the FIR, if it is otherwise proved. So, in this view of the 15 fact, I find that all the ingredients of the offence punishable u/s 498A IPC have been proved by the prosecution during trial. 26. From the discussions and appraisal of evidence on record, it is amply clear that the prosecution has fully proved its case beyond all reasonable doubts and the view taken by the learned trial court contrary to it, is perverse and not possible. It is not a case of two probable views rather it is a case wherein the view taken by learned trial court is not ‘possible’, rather it is an ‘erroneous and wrong view’. The finding of acquittal recorded by learned trial court is based on conjecture and surmises ignoring the material admissible, reliable, cogent, clinching evidence on record and the finding recorded by the court below regarding acquittal of the petitioner for the said charge is perverse and not in accordance with settled legal position, hence, it is set aside.” 22. On the basis of the aforesaid findings, the learned appellate court allowed the criminal appeal filed by the informant and reversed the judgment of acquittal of the petitioner passed by the learned trial court and convicted the petitioner under Section 498A of IPC However, the learned appellate court did not disturb the acquittal of the petitioner for the offence under Section 4 of the Dowry Prohibition Act. 23. This Court finds that in the present case, demand of rupees Twelve lacs and Duster Car for contesting election by the mother-in- law of the petitioner was made by the father-in-law, mother-in-law and sister-in-law of the Informant, but all the three persons have not been charge-sheeted and there is no evidence that there was any demand in this respect on the part of the petitioner. 24. This Court further finds that PW-1 father of Informant in his cross-examination admitted that he had not made any complaint regarding the demand of money by the mother-in-law for contesting the election of Mukhiya and no information was given regarding demand of Rs.12 Lakhs and Duster Car before lodging the present case. PW-6, first Investigating Officer, stated in his cross-examination that during investigation, none of the witnesses had said that the Informant was assaulted in the dining hall and he further stated that he had not seized any articles from the place of occurrence. He also 16 admitted that the Informant and other witnesses had stated that the Informant had stayed at her matrimonial house 10 days only. 25. The appellate court held that the money/articles given at the time of marriage were gifts and could not be termed as dowry and the demand of money after marriage was for the purposes of contesting of election by the mother-in-law of the informant and accordingly the said demand also could not be said to be dowry and accordingly held that offence under section 4 of the Dowry prohibition act was not made out. The appellate court has referred to depositions at para 5 of P.W. 1, para 6 of P.W. 4 and para 68 of P.W. 5 to hold that demand was made after marriage for the purpose of contesting election by the mother-in-law of the informant. 26. The statement of P.W. 1 (father of the informant) at paragraph 5 is that when the father of the informant went to the matrimonial house of the informant, the mother-in-law and father-in-law of the informant demanded Rs. 12 lakhs to contest election but P.W-1 expressed his inability to meet the demand. He has further stated that the petitioner (husband) and his daughter lived in his house for 3 to 4 days and during night when there was power cut and when his daughter lit the candle, the petitioner threw the candle at her. The statement of P.W. 4 in para 6 is that the mother of the petitioner wanted to contest election and therefore a demand of Rs. 12 lakhs was made. P.W. 5 (informant) in para 68 of her deposition has stated that there was demand of money as the mother-in-law wanted to fight election in May, 2016 but no money was given, still she won the election. 27. In the aforesaid statements of P.W. 1, 4 and 5 there is specific allegation of demand by the mother-in-law and father-in-law for purposes of contesting elections but there is no specific allegation against the petitioner. Further, the said demand was held to be not a demand of dowry and the appellate court had sustained the acquittal of the petitioner under section 4 of dowry prohibition Act. The only allegation against the petitioner is that when he stayed at the parental house of the informant for 3 to 4 days, there was a quarrel with regards to dowry and one day the petitioner threw candle upon the 17 informant when she lit the candle due to power cut. Since the petitioner has been acquitted with regard to demand of dowry, the quarrel with regard to dowry has no relevance. 28. What remains is whether the throwing of candle at the petitioner would constitute cruelty. 29. P.W. 5 (informant) in her cross examination has stated that she did not remember the date when her dupatta got burnt. P.W. 3, the mother of the informant has stated that she cannot produce the burnt dupatta in the court. P.W. 1, the father of the informant stated in his cross examination that the incident of burning of dupatta with candle had taken place on 22.03.2016 but no information was given to the police and even thereafter the petitioner stayed in the house of the P.W. 1 for 2 to 3 days. The learned trial court while considering the evidence of I.O. (P.W. 7) has recorded that one witness Nandu Singh had stated that the demand of dowry by accused was false and other accused were not charge sheeted as I.O. did not find any evidence against them. The trial court recorded that prosecution failed to prove charge against the petitioner beyond reasonable doubt. 30. This Court finds that in the present case there was allegation against the petitioner of throwing of candle at the informant during his stay in the parental house of the informant without proof of anything else although it was alleged that the dupatta of the informant was alleged to have been burnt but the witnesses in their cross examination expressed their inability to produce the burnt dupatta and the investigating officer of the case also did not seize anything from the place of occurrence. This is coupled with the fact that even after the alleged incident of throwing candle the petitioner continued to stay with the informant in her parental house for 2 to 3 days and thereafter also visited and stayed with the informant at Delhi and further spent vacation with the informant during the stay. 31. This Court finds that the Informant after marriage on 10.03.2016 went to her matrimonial house and lived for only 10 days and came back on occasion of holi on 20.03.2016, but never went back to her matrimonial home. Thereafter, the Informant went to 18 Delhi for her study and stayed there till 02.01.2017. There is materials on record and findings in the impugned judgements that the informant had even spent vacation with the petitioner after the alleged incident during Holi and before 02.01.2017 (the date of filing FIR), but there is no complaint or any allegation during which the petitioner stayed with the informant in Delhi or during which they spent vacation together after the alleged incident of throwing candle. Even after the incident of throwing candle, the petitioner stayed in the parental house of the informant for two three days and later on the informant went to Delhi to complete her studies where the petitioner and the informant met and also stayed together and also went on vacation and they were in good relationship with each other and photographs were also exhibited in support of this fact. In the facts and circumstances of this case and considering the conduct of the parties this court is of the considered view that merely on the basis of the alleged incident of throwing candle upon the informant of the case it cannot be held that the petitioner subjected the informant to cruelty within the meaning of section 498 A of IPC. 32. The appellate court mentioned the instances of cruelty of the informant by citing following instances in paragraph 21 of the judgment and reversed the acquittal of the petitioner under section 498A of IPC:- (i) The father of the petitioner had filed a Complaint Case bearing C1 Case No. 37/17 against the informant, her father and other persons in Aurangabad and they were on bail in that case which suggests harassment of the Informant. (ii) An allegation against the Informant having relationship with some other person has been levelled at Para-75 of her cross-examination to which the informant negated. Similar suggestion was also taken from her mother (PW-4). But nothing could be brought on record on behalf of petitioner in his defence in support of such allegation which renders 19 the allegation to be baseless. Such allegation itself appears to be a cruelty against the Informant. (iii) The Informant at Para-75 has mentioned that the petitioner has remarried even before getting the divorce from her and this conduct of the petitioner only fortifies the cruelty upon the informant and the action of petitioner comes under the purview of cruelty under Section 498A of IPC. (iv) The finding of acquittal recorded by learned trial court is based on conjecture and surmises ignoring the materials admissible, reliable, cogent and clinching evidence on record. 33. Section 498A IPC provides punishment for husband or relative of husband of a woman subjecting her to cruelty. Section 498A: “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 purposes of this section, "cruelty means"— (a) any wilful 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.” 34. This Court fully agrees with the argument of the learned counsel for the informant that in order to convict a person for offence under section 498A of IPC even under clause (b) to the explanation, demand of money or property by way of dowry is not the condition precedent and there can be demand otherwise than by way of dowry. The merely because the petitioner has been acquitted for offence 20 under section 4 of Dowry Prohibition Act cannot be the sole reason to hold that offence under section 498A is not made out. 35. This Court finds that although the learned appellate court has not specified as to whether the court was convicting the petitioner by referring to the definition of cruelty under clause (a) or clause (b) to explanation to section 498A of IPC but the aforesaid findings indicate that the conviction by the appellate court was referrable to explanation (a) as the demand of any money or security or material etc. by the petitioner either by way of dowry or otherwise was not proved against the petitioner and the learned appellate court has cited the instances of alleged harassment of the informant in paragraph 21 of the judgement which has no relation with demand of any money or property either as dowry or otherwise. Thus, in this case, this Court is concerned only with clause (a) and not concerned with clause (b) to the explanation. 36. The Hon’ble Supreme Court in the case of Manju Ram Kalita - vs- State of Assam (2009) 13 SCC 330 where the court was not concerned with explanation (b) to section 498A of IPC in Para-14 held as under: 14. In the instant case, as the allegation of demand of dowry is not there, we are not concerned with clause (b) of the Explanation. The elements of cruelty, so far as clause (a) is concerned, have been classified as follows: (i) any “wilful” conduct which is of such a nature as is likely to drive the woman to commit suicide; or (ii) any “wilful” conduct which is likely to cause grave injury to the woman; or (iii) any “wilful” act which is likely to cause danger to life, limb or health, whether physical or mental of the woman. 37. The Hon’ble Supreme Court in Manju Ram Kalita (supra) found that mental and physical torture of the lady was not continuous as there was no complaint against the husband between 1993 to 1997 and that the learned trial court itself was of the view that there was no evidence of cruelty on the part of the husband with a view to drive the 21 complainant to commit suicide and in such circumstances the Hon’ble Supreme court acquitted the petitioner for offence under section 498A of IPC. 38. This Court is of the considered view that the finding of cruelty based on aforesaid elements as recorded by the learned appellate court as mentioned in paragraph 21 of the appellate court’s judgement and enumerated above does not fall within the definition of cruelty under clause (a) of the explanation to Section 498A of IPC when seen in the light of the judgment Manju Ram Kalita (supra). There is no evidence as to what was the impact on the informant regarding allegations made against her or regarding the alleged remarriage of the petitioner before the divorce. 39. The learned appellate court has wrongly and mechanically recorded in Paragraph 26 without discussing the reasons and finding of the learned trial court that the view taken by the learned trial court was perverse and not possible and the finding of acquittal recorded by learned trial court is based on conjecture and surmises ignoring the material admissible, reliable, cogent, clinching evidence on record. This court is of the considered view that the learned trial court has taken a possible view based on materials on record and the judgment of acquittal was not fit to be interfered by the appellate court. This is over and above the finding of the learned appellate court at paragraph 22 of the judgement that the witnesses have exaggerated the facts during their evidence and in paragraph 23 that it may be possible that going on honeymoon with her husband and visiting of her husband in her hostel may not be known to the mother of informant and a further observation that the informant being married may decide at her own about the places to visit with her husband and on this score, their version may not be disbelieved if they are consistent on other material facts. 40. This Court is of the view that considering the totality of the aforesaid aspect the allegation of cruelty under clause (a) of the explanation to section 498A of IPC was not proved and accordingly the conviction of the petitioner by the appellate court by reversing the 22 judgment of acquittal by the trial court cannot be sustained in law. This Court is of the considered view that the learned appellate court has not considered the aforesaid aspects of the case properly while reversing the judgment of the trial court and convicting the petitioner under section 498A of IPC. This Court is of the considered view that the impugned judgment passed by the learned appellate court is perverse and legally not sustainable and calls for interference to prevent miscarriage of justice. 41. Accordingly, the judgment dated 29.04.2024 passed by the learned Additional Sessions Judge-IV, East Singhbhum at Jamshedpur in Criminal Appeal No.164 of 2023 convicting and sentencing the petitioner under Section 498A of IPC is set aside and the petitioner is acquitted from the charge under Section 498A of IPC. Consequently, the judgment of acquittal of the petitioner passed by the learned trial court is upheld. 42. The bailors of the petitioner are discharged from the liability of their bail bonds. 43. This criminal revision is allowed. 44. Let a copy of this judgment be communicated to the learned trial court through FAX/E-mail. Binit (Anubha Rawat Choudhary, J.) 23