Criminal Appeal No. 30 of 2013 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 1435 of 2016 Sunil Kumar Lohani son of Late Damodar Prasad Lohani, resident of Village- Manur Durga Colony, Post Office- Buniyadganj, Police Station- Mufassil, District- Gaya, Bihar … … Petitioner -Versus- 1. The State of Jharkhand 2. Shabnam Devi, wife of Sunil Kumar Lohani, at present residing at Kali Mandir Road, Jhumritelaiya, Post Office and Police Station- Telaiya, District- Koderma --- … … Opp. Parties CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State --- : Mr. A. S. Dayal, Advocate : Mr. P.S. Dayal, Advocate : Ms. Supriya Dayal, Advocate : Mr. Gautam Rakesh, APP --- Reserved on 20.09.2024 Pronounced on 03.12.2024 This criminal revision has been filed for setting aside the judgment dated 21.09.2016 passed by the learned Sessions Judge, Koderma in Criminal Appeal No.30 of 2013 whereby and whereunder the learned appellate court has dismissed the appeal and has affirmed the conviction of the petitioner for the offence under Section 498(A) of the Indian Penal Code (hereinafter referred to as IPC) and Section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as D.P. Act). However, the learned appellate court has modified the sentence under Section 498(A) of IPC to Rigorous Imprisonment for two years [from three years] with fine of Rs.2,000/- with default sentence. The learned appellate court has not interfered with the sentence of 1-year rigorous imprisonment with fine of Rs.1,000/- awarded to the petitioner for the offence under Section 4 of the D.P. Act. 2. The judgment of conviction and the order of sentence is dated 09.07.2013 passed by the learned Chief Judicial Magistrate, Koderma in G.R. Case No.404 of 2008 / T.R. No.396 of 2013, arising out of Telaiya P.S. Case No.245 of 2008. Submissions on behalf of the Petitioner 3.
Legal Reasoning
Learned counsel for the petitioner submitted that although there are concurrent findings recorded by both the learned Courts, but the impugned judgments of conviction are perverse and call for interference. 4. The learned counsel submitted that the petitioner being the husband of the informant has been convicted and sentenced. The petitioner faced the trial with other family members and there were general and omnibus allegations against all the persons relating to the incident at Gaya. He submitted that the only allegation in connection with the incident at Jhumri Telaiya i.e. the parental house of the informant-wife was that when the demand of dowry of Rupees One Lakh was not satisfied, the petitioner had left her at Jhumri Telaiya while she was pregnant. 5. Learned counsel further submitted that it was stated in the First Information Report that the petitioner had assaulted the informant in Jhumri Telaiya as well, but such incident at Jhumri Telaiya was not proved by the prosecution and no specific question was put to the petitioner under Section 313 of Code of Criminal Procedure in connection with the incident at Jhumri Telaiya, still the learned trial Court convicted the petitioner only by referring to the allegations made in the First Information Report. 6. Learned counsel submitted that the Investigating officer had not made any investigation in connection with the alleged incident at Gaya and except the petitioner, all other accused persons were acquitted by the learned trial court by referring to the allegations at Jhumri Telaiya. Submissions on behalf of the Opposite Parties. 7. Learned counsel appearing on behalf of the opposite party- State opposed the prayer and submitted that there are concurrent findings recorded by both the learned Courts and there is no scope for re-appreciation of evidence in revisional stage. He also submitted that the petitioner has been rightly convicted based on the materials available on record and the sentence awarded to the petitioner is also appropriate. 2 Findings of this Court 8. The prosecution case is based on the written report dated 08.06.2008 lodged by the Informant namely, Shabnam Devi before the Officer-in-charge, Telaiya Police Station, District- Koderma alleging that her marriage with the petitioner was solemnized on 08.12.2003 and at the time of marriage, her father had given gifts to the bridegroom side as per the demand made by them. After the marriage, when the informant went to her matrimonial house, her in-laws including her husband taunted her for giving less dowry of Rupees One Lac on the next day itself. In the year 2006, when the informant became pregnant, the petitioner forcibly took her to her parental house at the time of delivery and demanded Rupees One Lac as dowry. When the informant showed inability of her parents to fulfill the demand, she was assaulted by the petitioner. Thereafter, she gave birth to a daughter, but her in-laws did not come to see her. Ultimately, her father alongwith Samarjit Das and Binod Kumar took her to her matrimonial house, but she was again abused and tortured by her in- laws including the petitioner. On 31.05.2008, she was assaulted by her in-laws with a demand to bring Rupees One Lac and at the instance of her other in-laws, the petitioner took her to her parental house and left her there and returned home. On the basis of the written report, the case was registered as Telaiya P.S. Case No.245 of 2008 dated 08.06.2008 under Sections 498(A)/34 of IPC and Section 3 / 4 of D.P. Act against the petitioner and other persons. 9. After completing investigation, the Investigating Officer submitted Charge-sheet No.194/2009 dated 30.10.2009 under Section 498(A)/34 of IPC and Sections 3 and 4 of D.P. Act against the petitioner and five co-accused persons, showing the father-in-law namely, Damodar Prasad Lohani as dead. Thereafter, on 03.11.2009, cognizance of the offence under Section 498(A)/34 of IPC and Sections 3 and 4 of D.P. Act was taken in the case against the petitioner and others. The co-accused namely, Dinesh Prasad Lohani had died on 12.06.2009 and accordingly, the proceeding against him was dropped on 11.03.2010. On 11.03.2010, charges under Section 3 498(A)/34 of IPC and Sections 3 and 4 of D.P. Act were framed against the petitioner, Jaiprakash Lohani, Umesh Prasad Lohani, Sita Devi and Hemlata Kumari which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. Subsequently, the co-accused namely, Sita Devi (mother-in- law) died on 30.01.2011 and the proceeding against her was also dropped on 18.06.2011. Accordingly, the petitioner and Jaiprakash Lohani, Umesh Prasad Lohani and Hemlata Kumari faced the trial. 10. In course of trial, the prosecution examined altogether five witnesses. PW-1 is Samarjit Das, PW-2 is Vijay Kumar Diwan, who is the father of the informant, PW-3 is Shabnam Devi, who is the Informant herself, PW-4 is Binod Kumar, who is uncle of the informant and PW-5 is Ashok Kumar Singh, who is the investigating officer of the case. 11. PW-3 is the Informant (victim- wife of the petitioner) of the case. In her examination-in-chief, she deposed that her marriage with the petitioner was solemnised on 08.12.2003 as per Hindu rites and customs and after the marriage, she went to her matrimonial house, but on the next day itself, she was harassed by her husband and other in-laws for bringing less dowry of Rupees One Lac. In the meantime, when she became pregnant, the petitioner took her to her parental house. Thereafter, she gave birth to a daughter, but her in-laws did not come to see her child. After six months, her father took her to her matrimonial house, but her in-laws did not keep her properly. They stopped providing food to her and also threatened to kill her. On 31.05.2008, the petitioner brought her to her parental house, left her there and since then, she was living at her parental house. She exhibited the written report as Exhibit-1/1. During her cross- examination, she admitted that after the marriage, she had stayed at her matrimonial house for two years and when she had gone for the second time, she had stayed for about one year and she did not go for the third time. She further admitted that she is living at her parental house for the last 4-5 years since 2008. She stated that she does not want to live with her husband because she may be killed. Dowry 4 amount was demanded on the next day itself and she had informed the matter to her parental family members. When she was pregnant, she was taken to her parental house. After the delivery, her father, mousa and uncle had taken her to her matrimonial house. 12. PW-2 is the father of the Informant. In his examination-in- chief, he deposed that the marriage of the informant with the petitioner was solemnised on 08.12.2003 according to Hindu rites and customs. The in-laws kept the informant properly for 1 ½ years, but thereafter, the petitioner and other in-laws assaulted and tortured her for the rest amount of the dowry of Rupees One Lac. When the demand was not fulfilled, the petitioner brought the informant to her parental house in the month of February, 2006. The informant gave birth to a daughter in the month of March, 2006 and after 1 ½ months, he took the informant to her matrimonial house, but her in-laws did not keep her properly. On 31.05.2008, the petitioner brought the informant to her parental house and he had abused and assaulted her. During his cross- examination, he admitted that the petitioner has filed a case against him. He denied the suggestion that on 10.02.2006, he had forcibly brought the informant to his house. He further admitted that the informant had stayed for 2 ½ years at her matrimonial house and she had told the entire matter to him. 13. PW-4 is the uncle of the Informant. In his examination-in- chief, he deposed that the informant is his niece and her marriage with the petitioner was solemnised on 08.12.2003 according to Hindu rites and customs and after the marriage, she went to her matrimonial house, but on the next day itself, the petitioner and her other in-laws taunted her that her father has given less dowry of Rupees One Lac and on refusal, they tortured her in various ways. When the informant became pregnant, the petitioner and his father took her to her parental house where she gave birth to a daughter, but none came to see her. After birth of the child, he and his elder brother and others took her to her matrimonial house, but the accused persons did not accept her and started demanding Rupees One Lac as dowry. On 31.05.2008, the informant was driven out from her matrimonial house and the 5 petitioner took her to her parental house at Telaiya again. Thereafter, the informant filed the case. He exhibited his signature on the written report as Exhibit-1/2. During cross-examination, he admitted that when the informant came to her parental house on 31.05.2008, she did not go to her matrimonial house thereafter. He further admitted that the accused persons had demanded money from the informant in his presence in the year 2006-07, but he does not remember the day and date. The informant had told him that food was not provided to her. 14. PW-1 is mousa (brother-in-law) of the informant. In his examination-in-chief, he deposed that marriage of the informant with the petitioner was solemnized in the year 2003 according to Hindu rites and customs and after the marriage, she went to her matrimonial house. After some days, her in-laws demanded Rupees One Lac from her and when the demand was not fulfilled, her husband, mother-in- law, father-in-law, bhainsur and nanad assaulted and tortured her and she came to her parental house in the year 2006. When they took the informant to her matrimonial house, the in-laws said that they will not keep the informant till the demand is fulfilled. They left the informant at her matrimonial house, but they continued to torture her. Thereafter, in the year 2008, the petitioner brought the informant to her parental house at Telaiya and threatened that if the informant returns to her matrimonial house, she would be killed. The informant has one daughter. He exhibited his signature on the written report as Exhibit-1. During cross-examination, he admitted that when the marriage of the informant was performed in the year 2003, he had not gone to her matrimonial house, but he had gone there in the year 2006 alongwith the father and uncle of the informant. After two months of the marriage, the informant had told her father that her in-laws were demanding Rupees One Lac as dowry. He further admitted that the informant is living at her parental house at Telaiya since 2008. 15. PW-5 is the Investigating officer of the case. In his examination-in-chief, he deposed that he had taken charge of the investigation of the case on the direction of the Officer-in-charge of Telaiya police station and he had recorded the re-statement of the 6 informant and the statements of the witnesses namely, Vijay Kumar Diwan and Binod Kumar and had inspected the place of occurrence. He had also recorded the statements of the witnesses namely, Samarjit Das, Suman Devi and Om Prakash Tarve and all the witnesses had supported the prosecution case. He had submitted charge-sheet against the petitioner and others. During cross-examination, he admitted that he had enquired the informant about the occurrence at Gaya, but he has not recorded any description of the occurrence at Gaya, although dowry was demanded at Gaya also. He further admitted that he has not mentioned the place of occurrence and its boundary of the house at Gaya and has also not recorded the statements of the neighbours at Gaya. He further admitted that the informant had told him that she had lived at her matrimonial house from 2006 to 2008 and after some days, she filed the case in the year 2008 itself. He further stated that he and other police personnel alongwith A.S.I. Shivlal Ram had gone to the house of the accused persons at Gaya for investigation of the case. 16. On 04.06.2013, the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the incriminating evidences put to him that he and co-accused persons had demanded Rupees One Lac as additional dowry from the informant and on 09.12.2003, they tortured her and on 31.05.2008, they drove out her from her matrimonial house and on the same day, the petitioner, at the instance of his parents and brother, forcibly took the informant to her parental house. The petitioner claimed to be innocent. The petitioner did not adduce any oral or documentary evidence in their defence. 17. After conclusion of trial, the learned trial court considered the materials on record and recorded its findings at Para-13 that the marriage of the informant was solemnised with the petitioner and after the marriage, she went to her matrimonial house at Manpur, Durga Colony, Police Station- Mufasil, District- Gaya (Bihar) where all the accused persons demanded Rupees One Lac as dowry. On non- fulfilment of the demand, torture to the informant by the accused persons is proved. The learned trial court further recorded that from the evidence of the prosecution witnesses, it is also proved that some 7 part of the occurrence took place at the house of the informant situated at Jhumri Telaiya, Koderma, within the jurisdiction of the learned trial court, but the complicity of the petitioner-husband only has been established in the alleged occurrence at Jhumri Telaiya. A reference was also made to the allegations made in the FIR. After appreciation of the facts, circumstances and the evidences available on the record, the learned trial court found that the prosecution has failed to prove its case against the accused persons namely, Jaiprakash Lohani, Umesh Prasad Lohani and Hemlata Kumari beyond reasonable doubt and acquitted them from all the charges. The learned trial court at Para-16 recorded that the prosecution has successfully proved its case against the petitioner for the offences under Section 498(A) of IPC and Section 4 of the Dowry Prohibition Act beyond reasonable doubt. 18. The learned trial court convicted the petitioner under Section 498(A) of IPC and Section 4 of the D.P. Act and sentenced as mentioned above. 19. The learned appellate court also considered the material on record and recorded its findings at Para-7 to 10 which read as under: in his examination-in-chief. “7. Perused the case record. As stated above, altogether five witnesses have been examined in this case, out of whom P.W.5 Ashok Kumar Singh is the Investigating Officer who had done investigation of this case. P.W.1 Samarjit Das is independent witness. He has stated regarding the cruelty committed with the informant at the hands of accused persons including the appellant / convict. P.W.2 Vijay Kumar Diwan is father of the informant and he has thoroughly supported the case of the In his cross- informant examination, this witness has admitted that appellant/convict has instituted a criminal case against him also, but he has denied this allegation that he forcefully brought his daughter from her Sasural. It would be pertinent to mention here that defence has not filed any document or order relating to that criminal case which was filed by the appellant/convict against his father-in-law. This witness has also supported the case of the prosecution. P.W.3 Shabnam Devi is the informant of this case. In her examination-in-chief, she has thoroughly supported her case. She has stated regarding the atrocities committed with her due to non-fulfillment of dowry demand 8 made by her in-laws. In her cross- examination, she has clearly stated that she does not want to go to her Sasural because she has apprehension that she may be killed. P.W.4 Binod Kumar is Uncle of the informant and he has also supported the case of the prosecution in his examination-in- chief. In his cross-examination, he has stated that in his presence also, accused persons demanded money. 8. Perused the impugned judgment. I find that the learned C.J.M. has discussed the evidences adduced by the witnesses in his judgment and thereafter, he has come to this conclusion that offences u/ss. 498(A) of the IPC and 4 of the Dowry Prohibition Act established against the appellant / convict only and the learned C.J.M has acquitted rest of the accused persons. I further find that since the 1.O. has not recorded the statement of the witnesses residing at Gaya, the learned C.J.M. gave benefit of doubt to other accused persons because there was no allegation against them that they had come to Telaiya also and they have committed atrocities with the informant at Telaiya. 9. In the first place, I would like to see whether the court of learned C.J.M., Koderma had territorial jurisdiction to try the instant case or not. When I peruse the written report of the informant and the testimonies of the witnesses, I find that part of the occurrence has occurred at Telaiya also. It is true that main occurrence has taken place at Gaya (Bihar), but there is evidence on the record that husband of the informant visited Telaiya twice and he demanded dowry from his in-laws and assaulted and abused the informant due to non-fulfillment of dowry demand. Hence, it is crystal clear that some occurrence has also taken place within the jurisdiction of Koderma district and obviously, the learned C.J.M, Koderma had jurisdiction to try this case. 10. There is no doubt that still the informant is residing separately from her husband. Nothing has been brought on the record by the appellant/convict to show that he was wanting to keep the informant at his residence with full dignity and honour. No evidence has been brought on the record by the defence that without any valid reason why the informant is not residing at her Sasural. No evidence has been brought on the record by the defence for restitution of conjugal life, the appellant/convict took any step. The informant Shabnam Devi is most competent witness of her case and she has thoroughly supported her case in her examination-in-chief. I find that defence has not been able to shake her testimony in her cross- 9 examination. If she is not willing to reside at her Sasural, she had valid reason for doing so because she has apprehension of her life. Other witnesses including some independent witnesses have supported the case of the prosecution. Since 31.05.2008 the informant is residing at her Sasural and for the last eight years, no step has been taken by anyone including the appellant / convict to settle the matter and keep her at her Sasural. I find that learned C.J.M, Koderma after discussing the evidences available on the case record has pronounced the impugned judgment. I also feel that there is evidence on the record that appellant/convict has committed cruelty with his wife due to non-fulfillment of dowry demand. In my view, the learned C.J.M. has rightly held the appellant / convict guilty u/ss. 498(A) of the IPC and 4 of the Dowry Prohibition Act. As such, I find no merit in this criminal appeal preferred by the appellant/ convict and accordingly, it is hereby dismissed and the impugned judgment of conviction is hereby affirmed.” 20. After hearing the parties and going through the records of the case, this Court finds that PW-3 Informant has fully supported her case in her evidence. She has fully supported the cruelty committed to her by the petitioner for demand of Rupees One Lac as dowry at her matrimonial house and also at her parental house. She was brought and left at her parental house by the petitioner on account of non- fulfilment of the demand and since then, she has been living at her parental house. This Court further finds that PW-2 father of Informant, PW-4 uncle of the Informant, PW-1 mousa of the informant and PW-5 investigating officer of the case have fully corroborated the evidence of the Informant with regard to the cruelty committed to the informant by the petitioner for demand of dowry of Rupees One Lac and her torture. The defence has failed to elicit any contradiction to discredit their evidences. This Court further finds that PW-1 has clearly stated in his examination-in-chief that in the year 2008, the petitioner brought the informant to her parental house at Telaiya and threatened that if she will return to her matrimonial house without Rs.1,00,000/-, she would be killed. PW-2 has also stated that on 31.05.2008, the petitioner brought the informant to her parental house and in her parental house also, the petitioner had abused and assaulted her. No 10 question has been put to them by the defence during their cross- examination with regard to the occurrence at the parental house of the informant. The aforesaid facts establish that part of the occurrence had taken place at the parental house of the informant at Telaiya also. 21. The learned trial court has recorded at Para-14 that from the evidence of the prosecution witnesses, it is also proved that some part of the occurrence took place at the house of the informant situated at Jhumri Telaiya, Koderma, but the complicity of the petitioner-husband only has been established in the alleged occurrence at Jhumri Telaiya. The learned appellate court also recorded at Para-9 that there is evidence on record that husband of the informant visited Telaiya twice and he demanded dowry from his in-laws and assaulted and abused the informant due to non-fulfilment of dowry demand. Hence, it is crystal clear that some occurrence has also taken place within the jurisdiction of Koderma district and obviously, the learned C.J.M, Koderma had jurisdiction to try this case. 22. In view of the aforesaid evidences and the findings of the learned courts, the contention of the learned counsel for the petitioner that no occurrence had taken place at Telaiya and the learned trial court at Koderma had no jurisdiction to try the case has no force. 23. So far as the statement under Section 313 Cr.P.C is concerned, this Court finds that it was put to the petitioner that he had assaulted the informant on account of non-fulfillment of demand of dowry of Rs.1,00,000/- and upon non-fulfillment of the demand, he forcibly brought the informant to her parental house and left her over there. This Court is of the considered view that the torture in connection with demand of dowry continued even when the petitioner forcibly took her from her matrimonial home and left her at her parental house and accordingly, the argument of the petitioner that no cause of action arose at Jhumri Telaiya is devoid of any merit. This Court also finds that both the learned courts have considered the points of territorial jurisdiction and have returned concurrent findings after considering the materials on record. There is no scope for re-appreciation of evidence and coming to a different finding in revisional jurisdiction. 11 Moreover, the prosecution witnesses including the informant herself who is also the victim of the case has fully supported the prosecution case. 24. This Court further finds that the learned courts have recorded concurrent findings and have passed well-reasoned judgements considering every aspect of the matter and the findings recorded by the learned courts are neither unreasonable or perverse and no failure of justice has been caused to the petitioner. 25. So far as acquittal of other co-accused persons is concerned, the learned appellate court recorded that the trial court convicted the husband only and acquitted rest of the accused persons and recorded that since the I.O. had not recorded the statement of the witnesses residing at Gaya, the learned C.J.M. gave benefit of doubt to other accused persons because there was no allegation against them that they had come to Telaiya also and they have committed atrocities with the informant at Telaiya. Thus, the learned trial court and also the learned appellate court has cited reasons for acquittal of the other co- accused persons by giving them the benefit of doubt. 26. This Court further finds that the petitioner was granted anticipatory bail by this Court during investigation of the case and he was on bail during appeal and he has remained in jail custody for a period of about one month only during pendency of this criminal revision. The learned appellate court found that the punishment given to the petitioner was excessive and has modified and reduced the sentence of the petitioner to Rigorous Imprisonment for two years with fine of Rs.2,000/- for the offence under Section 498(A) of IPC and sustained the sentence under Section 4 of the D.P. Act. 27. Considering the entire facts and circumstances of this case, this Court does not find any illegality or perversity in the impugned judgments of conviction calling for any interference under revisional jurisdiction. 28. Considering the fact that much time has elapsed from the date of the incident and also the sufferings of the victim, the sentence is 12 required to be modified to some extent so that the victim may also get some victim compensation. 29. Considering the totality of facts and circumstances, the sentence of the petitioner for offence under Section 498(A) of IPC is reduced to rigorous imprisonment of one year and fine is increased to Rs.3,00,000/- (Three Lacs) to be deposited by the petitioner before the learned trial court within a period of three months from today. The punishment imposed under Section 4 of D.P. Act does not call for any interference. Both the sentences to run concurrently as directed by the learned courts. 30. The fine amount so deposited be remitted to the victim (informant) upon due identification. 31. In case of non-deposit of the fine amount within the aforesaid time, the petitioner would serve the sentence as modified by the learned appellate court. 32. Accordingly, the judgment of conviction of the petitioner for the offences under Section 498(A) of IPC and Section 4 of the D.P. Act passed by the learned trial court and affirmed by the learned appellate court is upheld and the sentence of the petitioner passed by the learned appellate court is further modified as mentioned above. 33. This revision is disposed of in the aforesaid terms. 34. The bail bond furnished by the petitioner is cancelled. 35. Let the original records received be sent back to the court concerned. 36. 37. Let a copy of this judgment be communicated to the learned Pending interlocutory application, if any, is closed. trial court through FAX/E-mail. Saurav/- (Anubha Rawat Choudhary, J.) 13