The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.522 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Ranjit Kumar Sethi ……. Petitioner -Versus- State of Orissa & another ……. Opposite Parties For the Petitioner : Mr. Prahallad Sahu, Advocate For the Opp. Parties : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
this Court in the case of Pathani Parida & another vs. Abhaya Kumar Page 8 of 9 Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469 to claim the benefit of P.O Act concession. 16. Accordingly, the present Criminal Revision in so far as the conviction is concerned is turn down. But instead of sentencing the petitioner to suffer imprisonment, this Court directs the petitioner to be released on bail under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.06.2024 : Date of Judgment: 16.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 r/w section of Cr.P.C. is directed against the judgment and order dated 30.04.2011 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court-II, Kandhamal, Phulbani in Criminal Appeal No.06/2011 (Criminal Appeal No.30/2010), whereby the judgment of conviction and order of sentence dated 12.08.2010 passed by the learned Chief Judicial Magistrate, Phulbani, in G.R. Case No.442 of 2006/T.R. Case No.112 of 2008 has been confirmed. 2. The prosecution case in brief is that the complainant got married to the accused (present petitioner) on 05.07.1999 as per their caste and custom. Two children were born out of their wedlock. After sometime, the accused quarreled with her to marry Lipi Digal, the younger sister of the complainant. When she opposed to the same, the petitioner and his parents abused the complainant in filthy language and assaulted her by means of kick and fist blows and also threatened her to leave their house. One day the petitioner fled away with Lipi Digal by an intention to marry her. When they returned to the house of the petitioner, the complainant knew about the incident and was forced to leave the house and then she went to her paternal house. Thereafter the father of the complainant along with some other persons went to the village of the accused-petitioner and convened a meeting to settle the matter. But instead of settling the matter, the petitioner along with other accused Page 2 of 9 persons abused the complainant and her father in filthy language and assaulted them by means of lathi and kick blows and also threatened them not to go to the Police Station or the Court else they will kill the complainant and her father. 3. The complainant filed a complaint before the S.D.J.M., Phulbani, who sent the same to the Khajuripada Police Station for investigation. The O.I.C., Khajuripada Police Station registered the case vide P.S. Case No.84/2006 and took up the investigation. During investigation, the I.O. visited the spot, examined the witnesses and on completion of the investigation, he submitted the charge sheet under Sections- 498A/294/494/323/506/34 IPC against the petitioner. 4. To bring home charges, the prosecution had examined as many as 6 witnesses and 1 document was exhibited. The plea of defence was that of complete denial. 5. The learned Trial Court analyzed the entire evidence on record and sentenced the petitioner to undergo R.I. for three years and to pay a fine of Rs.1,000/- (Rupees one thousand) in default of payment of fine to undergo R.I. for further three months. Page 3 of 9 6. The judgment of conviction and sentence dated 12.08.2010 passed by the learned Chief Judicial Magistrate, Phulbani in G.R. Case No.442 of 2006/T.R. No.112 of 2008 was called in question by filing Criminal Appeal No.06/2011 (Criminal Appeal No.30/2010) before the Court of the learned Ad hoc Addl. Sessions Judge, Fast Track Court-II, Kandhamal, Phulbani, by the petitioner. 7. Having failed in his appeal the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Mr. Prahallad Sahu, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 10. The petitioner stood charged for the alleged offences U/Ss. 294/ 323/494/498A/506/34 IPC on the allegation that P.W.3 was abused in obscene language by the petitioner causing her voluntary hurt and was Page 4 of 9 also subjected to cruelty apart from the allegation of the petitioner committing bigamy and criminal intimidation. 11. The prosecution examined six witnesses to bring home the aforementioned charges. P.Ws. 1, 2 & 6 were the independent witnesses whereas P.W.3 was the informant/complainant/victim of the case. P.W.4 is the father of the victim whereas P.W.5 is the mother of the victim. The testimony of P.W.3 stands corroborated with the evidence of P.Ws. 4 & 5. In so far as the fact that the accused had brought the sister of P.W.3 to his house and when protested by P.W.3, she was assaulted and was driven out of the house, the independent witnesses had also corroborated this aspect of the matter. Therefore, learned trial Court, by analyzing the evidence on record, returned the following findings: “7. Neither of the P.Ws has stated anything about the name of the villagers who were assaulting. The informant has also not stated that the villagers at the meeting assaulted her. The P.Ws have not stated anything about solemnization of the second marriage as per their caste and custom. Informant has also not stated about any kind of torture made other accused persons apart from the accused no.1, Ranjit. So from the above discussion, it is clear that the Defence has neither adduced any evidence in it’s support nor disproved the marriage between PW1 and the accused no.1 and also it is well proved on record that the accused Ranjit has been living with Lipi although his legally married wife, P.W.1 is living. “Cruelty for the purpose of constituting the offence under Sec-498-A need not be always physical, even mental torture in a given case would be a case of cruelty or harassment” as it was held in Page 5 of 9 Gananath vs. State (2002) 2 SCC 619. Here keeping another woman when one’s wife is alive is one type of mental cruelty. As it was held in Amal vs. West Bengal (2009) Cr LJ 4333 Cal that “extra marital relationship also amounts to mental cruelty”. So the allegation under sec 498-A against the accused no.1, Ranjit is proved but not against the other accused persons. For fastening the criminal liability under Sec 494 of IPC, both the marriage must be proved. In case of second marriage, it has to be proved as a matter of fact and it must also be proved that the necessary the ceremonies connected prosecution has not proved the second marriage and thus the allegation u/s 494 of IPC against the accused no.1 is not proved. therewith have been performed. Here As per the allegation under Sec 323, neither of the P.Ws has corroborated PW1 that the accused Ranjit was assaulting her. And as per the allegation under Sec 294, 506 read with 34 IPC the informant herself has not stated anything about the incident. The prosecution has failed miserably to prove the charges under Sec. 323, 294, 506 read with 34 IPC.” 12. Resultantly, the petitioner was found not guilty of the offences charged under Sections 494/294/323/506/34 IPC and was accordingly acquitted. However, the petitioner was found guilty for the offence under Section 498A IPC. He was sentenced to three years R.I. and also fine of Rs.1,000/- (Rupees one thousand) in default, to undergo R.I. for three months more. 13. The petitioner took up the matter in appeal. Learned Ad hoc Addl. Sessions Judge, Fast Track Court-II, Kandhamal, Phulbani vide its judgment dated 30.04.2011 in Criminal Appeal No.6/2011 (Crl. Appeal Page 6 of 9 No.30/2010) has confirmed the conviction and sentence passed by the Court below. The Appellate Court meticulously dealt with the evidence and after threadbare discussion, returned the following finding: “Judged by the principles as discussed here in above when the case in hand is examined it is found that overwhelming evidence has been brought on the side of the prosecution to the effect that the accused brought sister of the victim namely Lipi to his house in presence of the complainant though the factum of the marriage could not be proved. The fact that the complainant had to return to her parental house at the first instance after the arrival of her sister to her matrimonial house and could not be resolved in the meeting has been duly proved by P.W. 6 and has also not been disputed by the accused/appellant that leads only to the conclusion that the sole circumstance which compelled the complainant to leave the matrimonial house is the presence of her own sister as second wife in the life of her husband. Having regard to the style of living, the culture which is prevalent in the society of the parties to the proceeding obviously presence of another lady in the same house is a circumstance subversive to the relationship between the husband and wife and the act that the husband brought another lady to the house in presence of his married wife and living with her treating her as wife is an willful ill-treatment on the part of the husband to cause suffering not only in the body but also in the mind of the spouse and would certainly raise apprehension to render their continued living together as spouses harmful and injurious and as such amounts to cruelty. There is no such material in the evidence to believe that the type of life led by the parties is such that the wife would tolerate the presence of even her own sister in the status of concubine in the house of her husband which she claims to be her matrimonial house. It is apt to say that no married woman would like to see her husband with another lady substituting her place bodily or mentally with emotion and sentiment nor could tolerate the same as the part of her life whether such living of the lady in the house of the husband is intentional or unintentional. I am, therefore, of the view that the circumstance of having a lady may she be the sister in the house by the accused in presence of the wife is sufficient to inflict mental torture to the wife and can well be brought within the ambit of the definition of cruelty.” Page 7 of 9 14. I find no reason to doubt the findings recorded by the Courts below. After perusal of the evidence of the victim and her parents, I found that their statements are trustworthy and consistent. Even the testimonies of P.Ws. 1, 2 & 6 those who are the independent witnesses have also lent corroboration to the version of P.W.3. Therefore, I am inclined to confirm the conviction recorded against the petitioner in so far as the punishable offence under Section 498A IPC is concerned. 15. Regard being had to the peculiar facts of the present case and the fact that the incident took place in the year 1999, sending the petitioner to undergo the incarceration at this stage may not be appropriate. Moreover the petitioner while on bail has not misused the concession and he is not a criminal, rather the dispute arose from matrimonial discord. Therefore, the oral prayer made by learned counsel for the petitioner Mr. Prahallad Sahu to grant the benefit of Probation of Offenders Act to the petitioner deserves merit. Even otherwise the petitioner can also derive the benefit from the ratio of the judgment of
Decision
17. The Criminal Revision is accordingly disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 16th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2024 13:57:55 Page 9 of 9